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Integrity in International Justice
Morten Bergsmo and Viviane E. Dittrich (editors)

Morten Bergsmo and Viviane E. Dittrich

(editors)
2020
Torkel Opsahl Academic EPublisher
Brussels
Front cover: Sir Thomas More (1478-1535) painted by the German artist Hans Hol-
bein the Younger (1497-1543) in the late 1520s. Sir Thomas More is discussed exten-
sively in this book as a symbol of integrity in justice.
This and other publications in TOAEP’s Nuremberg Academy Series may be openly
accessed and downloaded through the web site http://www.toaep.org/, which uses
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changed). This publication was first published on 19 November 2020.
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ISBNs: 978-82-8348-190-7 (print) and 978-82-8348-191-4 (e-book).
Be grateful as your deeds become less and less associated
with your name, as your feet ever more lightly tread the earth.
Dag Hammarskjöld
FOREWORD BY THE SERIES EDITOR
The Nuremberg Academy Series seeks to cover relevant and topical areas in
the field of international criminal law, and includes work that is interdisci-
plinary or multidisciplinary, bringing together academics and practitioners.
Grounded in the legacy of the Nuremberg Principles – the foundation of
contemporary international criminal law – it addresses persistent and press-
ing legal issues, and explores the twenty-first century challenges encoun-
tered in pursuing accountability for core international crimes. The Series
was established in April 2017 by the International Nuremberg Principles
Academy, in co-operation with the Centre for International Law Research
and Policy (‘CILRAP’), to produce high-quality open access publications
on international law published by the Torkel Opsahl Academic EPublisher
(‘TOAEP’).
The first volume in the Series, Two Steps Forward, One Step Back:
The Deterrent Effect of International Criminal Tribunals, 1 explored the de-
terrent effect in international justice, including case studies of deterrent ef-
fect in ten situations of four different international tribunals. The second
volume, Islam and International Criminal Law and Justice, 2 focused on
Islamic perspectives and criminal law, and examined the relevancy and ap-
plicability of the Nuremberg Principles to notions of justice in the Muslim
world. The third volume in the Series, The Tokyo Tribunal: Perspectives on
Law, History and Memory, 3 presented a contemporary rereading of the In-
ternational Military Tribunal for the Far East (‘IMTFE’), combining per-
spectives from law, history and social science.
This book, the fourth volume in the Series, revisits integrity in inter-
national justice through different perspectives, addressing primarily indi-
vidual integrity within international justice institutions, but also including
1
Linda Carter and Jennifer Schense (eds.), Two Steps Forward, One Step Back: The Deterrent
Effect of International Criminal Tribunals, Torkel Opsahl Academic EPublisher (‘TOAEP’),
Brussels, 2017 (http://www.toaep.org/nas-pdf/1-carter-schense).
2
Tallyn Gray (ed.), Islam and International Criminal Law and Justice, TOAEP, Brussels,
2018 (http://www.toaep.org/nas-pdf/2-gray).
3
Viviane E. Dittrich, Kerstin von Lingen, Philipp Osten and Jolana Makraiová (eds.), The
Tokyo Tribunal: Perspectives on Law, History and Memory, TOAEP, Brussels, 2020 (http://
www.toaep.org/nas-pdf/3-dittrich-lingen-osten-makraiova).
i
the dimension of institutional integrity. The volume advances new under-
standings of integrity in international justice, and includes important poli-
cy-relevant insights. The volume is of paramount relevancy in light of the
environment of increased scrutiny of international justice institutions, in-
trospection on how institutions operate, their values and purposes, and ex-
amination of a wider commitment to effective multilateralism and a rules-
based international order.
The anthology draws on a number of papers that were presented at an
international conference organized by CILRAP and the International Nu-
remberg Principles Academy in the Peace Palace in The Hague, on 1-2 De-
cember 2018. I express my gratitude to the Nuremberg Academy and CIL-
RAP teams that made the conference possible, with the support of the
Academy’s Director as well as its Foundation Board and Advisory Council.
I am also grateful to TOAEP and especially to my co-editor of this volume,
Morten Bergsmo, for agreeing to publish the book in the Nuremberg Acad-
emy Series, and for his generous support and commitment to the topic of
integrity.
Viviane E. Dittrich
Editor, Nuremberg Academy Series
Deputy Director, International Nuremberg Principles Academy
ii
PREFACE BY THE CO-EDITORS
The seeds of this book were sowed in 1994-95 when one of its two co-
editors, Morten Bergsmo, asked himself why the team that was forming in
the Office of the Prosecutor of the International Criminal Tribunal for the
Former Yugoslavia (‘ICTY’) was characterized by such a strong and con-
structive team-spirit that lasted for almost a decade. Was it caused by the
mandate of the Tribunal? Or the circumstances surrounding its creation in
1993 by the United Nations Security Council acting pursuant to consensus?
Was it the personality of the first Chief Prosecutor, Richard J. Goldstone,
that set the tone for the team? Was it the dedication of the group of 23
United States (‘US’) prosecutors, investigators and other professionals who
had been seconded to the Office by the US government? Or perhaps the
awareness that a powerful country was supporting the work of the Tribunal?
Or was it the character of specific colleagues, such as Terree A. Bowers
(now Partner, Arent Fox) who in his former function as US Attorney in
California led an agency of more than 300 lawyers and now accepted to sit
in an open office-space as a member of one of several ICTY investigative
teams without complaining? Or was it a combination of some of these and
other factors?
At that time, the ICTY Office of the Prosecutor (‘OTP’) was doing
poorly on equitable geographical distribution of staff and had a very rudi-
mentary normative infrastructure, so diversity and strong formal ethics
framework were obviously not the factors that created the remarkable mo-
rale, sense of common purpose, and unity within the Office in those early
years. Understanding this particular period of contemporary international
criminal justice more clearly – as a positive example from which lessons
may be drawn – is important in order to assess how improvements can be
made in other international justice agencies. We are therefore very pleased
that several authors in the present anthology were involved with the work
of the ICTY-OTP at that time, including Julija Bogoeva, Andrew T. Cayley,
Hans Corell, Richard J. Goldstone, Hanne Sophie Greve, Karim A.A. Khan,
Teresa McHenry and Christopher Staker, in addition to co-editor Bergsmo.
The next step in the process to conceive this anthology occurred in
2003. Bergsmo participated in the negotiation process to create the Interna-
tional Criminal Court (‘ICC’) between 1996 and 2002, and he had been
iii
appointed the first Senior Legal Adviser of the ICC-OTP. Working together
with Klaus Rackwitz (now Director of the International Nuremberg Princi-
ples Academy), Salim A. Nakhjavani (author of Chapter 22 below), and
others, Bergsmo had led the preparatory team to establish the ICC-OTP, at
the request of the States Parties and the Advance Team. 1 By October 2003,
Bergsmo looked back to the early days of the ICTY-OTP in 1994-95, to the
monumental efforts of states between 1996 and 2002 to construct a detailed
ICC normative infrastructure, the comprehensive work programme of the
ICC-OTP preparatory team during 2002 and 2003, and the challenges that
had already arrived in the ICC-OTP in the autumn of 2003. It was apparent
that, although the process to create the ICC was led by States, more than
anything, lawyers steered the process and they had crafted a very sophisti-
cated normative framework within which the Court was being constructed.
But why was the atmosphere so fundamentally different from when the
ICTY-OTP was established? What, if anything, was lacking? Bergsmo con-
cluded that there was disproportionate attention placed on legal means, and
not enough on the integrity of the individuals who would fill the legal and
physical structures of the Court:
It is an intriguing case study of the sharp contrast between the
elaborate legal infrastructure of the ICC and the limitations of
those individuals who were elected to first run the Court. On
the one hand, the legal infrastructure was developed through a
massive, collective effort of the international community. On
the other hand, the first Prosecutor of the Court was elected in
an almost careless manner. 2
Before the end of 2003, Bergsmo resolved to undertake a broadly-
based research project on ‘integrity in international justice’, with a view to
zooming in on the role of the individual within international justice institu-
tions and individual integrity.
The next step towards the present book was taken in Nuremberg on
29 April 2017, when the anthology Historical Origins of International
Criminal Law: Volume 5 – co-edited by the Nuremberg Academy’s Direc-
1
For a detailed overview of the work of the preparatory team, see Morten Bergsmo, Klaus
Rackwitz and SONG Tianying (eds.), Historical Origins of International Criminal Law:
Volume 5, Torkel Opsahl Academic EPublisher (‘TOAEP’), Brussels, 2017 (http://www.
toaep.org/ps-pdf/24-bergsmo-rackwitz-song), in particular Morten Bergsmo, Chapter 1, “In-
stitutional History, Behaviour and Development”, pp. 1–31.
2
Ibid., p. 25. This strong statement does obviously not apply to all representatives of states
who were involved in the process, for example the German diplomats. Bergsmo was in fre-
quent contact with diplomats in the months leading up to the appointment of the first ICC
Prosecutor, in his capacity as head of the preparatory team of the ICC-OTP.
iv
tor Rackwitz, SONG Tianying, and Bergsmo – was launched during an
event in Courtroom 600, just above the permanent premises of the Nurem-
berg Academy. Section 1.6. of the book (“Hammarskjöld, Integrity and the
Election of Prosecutors”) observes that Dag Hammarskjöld (the second
United Nations Secretary-General)
saw service as “self-oblivion”, as striving towards “an unhesi-
tant fulfilment of duty”. When a team of international civil
servants recognises this higher dimension of the customary
requirement of “persons of high moral character”, it leaves no
stone unturned to make the foundations of their organisation
as strong as possible. Such recognition creates a sense of unity
of purpose, reducing the energy and time spent on conflict.
[…] If States Parties do not elect persons of adequate integrity,
a young international organisation may be stillborn for many
years and taxpayers’ money may be wasted before it meets
basic expectations of functionality. 3
It pointed out that even if a government doubts the integrity of a can-
didate for prosecutor of an international criminal court,
it may still be tempted to back him if it predicts that he will be
sympathetic to its interests, perhaps out of indebtedness for
being elected or established co-operation over some years.
Worse, a government may possess information that the candi-
date does not have the requisite integrity, but nevertheless
support him – or fail to raise objections when his candidacy is
discussed – because it expects that he will be weak or com-
promised and therefore a pliant instrument should its interests
become threatened during his term. Both modes of thinking
are short-sighted. In effect, both make a mockery of the statu-
tory requirements of “high moral character”, “integrity” and
“the highest standards of […] integrity”. If States Parties do
not take these standards for what they are – binding legal re-
quirements – we cannot expect that the high officials of inter-
national organisations like the International Criminal Court
will give them proper effect when they fill the organisation
with staff. If we want international organisations to work ac-
cording to their design, ethics cannot be an afterthought in
their construction and management. 4
The passage links the need to take integrity in international justice
more seriously, to the manner in which States Parties exercise their role in
3
Ibid., p. 30 (footnotes omitted).
4
Ibid., pp. 30–31 (footnotes omitted).
v
the election of high officials of international courts and tribunals. It places
the responsibility for failures to elect judges and prosecutors with high in-
tegrity squarely at the feet of diplomats. Three years later, in 2020, the de-
mand that the third ICC Prosecutor possess the highest integrity became a
watchword for a process that was reaching a climax around the time this
book was published. While this link between concern for integrity and the
election of the ICC Prosecutor is appropriate, it is only one part of the need
for a broader discourse on the ‘binding legal requirement’ of integrity in
international justice. The quoted passage amounted to a public statement of
intention to pursue an ‘integrity project’, which the Nuremberg Academy
and the Centre for International Law Research and Policy (CILRAP) grad-
ually resolved to undertake together, with a wider focus than simply the
election of high officials.
It was, however, the question of the ICC Prosecutor that attracted
vigorous attention a few months later in 2017, particularly with various
media revelations in October 2017 based on the hacking of an e-mail ac-
count of the first ICC Prosecutor. 5 A few weeks later, on 22 November
2017, the process was jolted by the policy brief “A Prosecutor Falls, Time
for the Court to Rise” by four directors of independent organizations work-
ing on international justice issues: Wolfgang Kaleck (General Secretary,
European Center for Constitutional and Human Rights), Alexander S. Mul-
ler (Chief Executive Officer, The Hague Institute for Innovation of Law),
William H. Wiley (Director, Commission for International Justice and Ac-
5
The media outlets included Mediapart, Der Spiegel, NRC Handelsblad, The Sunday Times,
El Mundo, L’Espresso, Le Soir, ANCIR, Nacional and The Black Sea. For their articles, see,
inter alia, Mediapart, “Former ICC prosecutor’s lucrative links with Libyan billionaire and
ex-ally of Gaddafi”, 1 October 2017 (http://www.legal-tools.org/doc/895f3b); Spiegel
Online, “Ex-Chefankläger Ocampo beschützte libyschen Milliardär”, 29 September 2017
(http://www.legal-tools.org/doc/bdb5ca/); The Sunday Times, “Insight: Luis Moreno Ocam-
po, war crimes prosecutor, tipped off Gadaffi crony Hassan Tatanaki”, 1 October 2017
(http://www.legal-tools.org/doc/26c605/); NRC Handelsblad, “Medewerker van Strafhof be-
taald voor lobby bij het hof”, 1 October 2017 (http://www.legal-tools.org/doc/b0cc4f/); Me-
diapart, “The secret double-dealing in Kenyatta ‘crimes against humanity’ case”, 6 October
2017 (http://www.legal-tools.org/doc/939caf/); Mediapart, “The devious manoeuvres behind
ex-Ivorian leader Laurent Gbagbo’s trial at ICC”, 8 October 2017 (http://www.legal-
tools.org/doc/0c5a22/); Mediapart, “Angelina Jolie, Omidyar et le Qatar: le cabinet cache du
procureur Ocampo”, 6 October 2017 (http://www.legal-tools.org/doc/ea4930/); and Media-
part, “How chief prosecutor at International Criminal Court owned companies in tax ha-
vens”, 29 September 2017 (http://www.legal-tools.org/doc/56cfa8/).
vi
countability), and co-editor of this volume, Morten Bergsmo (Director,
Centre for International Law Research and Policy). 6 They pointed out that
an international court will not be better than the integrity of its
leaders. The Statute of the ICC requires high integrity or
“moral character”. International prosecutors such as Richard J.
Goldstone and Louise Arbour – the first and second Chief
Prosecutors of the ex-Yugoslavia and Rwanda Tribunals –
show that this is a realistic qualification. In fact, integrity is a
legally binding requirement to serve as Judge or Prosecutor at
the ICC. States Parties are obliged to be as responsible when
they elect the next chief Prosecutor as they were during the
highly deliberate creation of the Statute in 1998. If the norma-
tive framework of the Court is its chassis, the OTP is the en-
gine. It is equally important that both function well. 7
The directors reminded us that the states that assembled in Rome’s
Capitol at the end of the ICC Diplomatic Conference “took an oath, not to
an omniscient Jupiter, god of the sky [whose temple had stood where they
met], but to an equally all-seeing humankind, pursuant to whose collective
aspirations the States claimed to act, in the name of peoples, of victims”. 8
They called for an “inquiry” by use of “external expert[s]” to help “turn
every stone to restore trust” in the Court.
It took just over two years before the Court’s Assembly of States Par-
ties ordered an external review on 6 December 2019, with the mandate to
“making concrete, achievable and actionable recommendations aimed at
enhancing the performance, efficiency and effectiveness of the Court and
the Rome Statute system as a whole, […] and submit those to the Assembly
and the Court for consideration”. 9 This Independent Expert Review (‘IER’)
delivered its final report on 30 September 2020. 10 The report amounts to a
systemic review, not an inquiry into allegations of misconduct by high offi-
6
See Morten Bergsmo, Wolfgang Kaleck, Alexander S. Muller and William H. Wiley, “A
Prosecutor Falls, Time for the Court to Rise”, FICHL Policy Brief Series No. 86 (2017),
TOAEP, Brussels, 2017 (http://www.toaep.org/pbs-pdf/86-four-directors/).
7
Ibid., p. 3 (footnotes omitted).
8
Ibid.
9
ICC, Assembly of States Parties, Review of the International Criminal Court and the Rome
Statute System, ICC-ASP/18/Res.7, 6 December 2019, para. 6 (https://www.legal-tools.org/
doc/d1fyfk/).
10
See Independent Expert Review, “Review of the International Criminal Court and the Rome
Status System, Final Report”, 30 September 2020 (‘IER Report’) (https://www.legal-
tools.org/doc/cv19d5/).
vii
cials, as explained by authors in this anthology. 11 But it is an immensely
useful report, with numerous insightful recommendations, and pages 83-
105 deal with “Ethics and Prevention of Conflicts of Interest” and “Internal
Grievance Procedures”, as touched upon in the introductory chapter below.
The policy brief of the four directors was influential also in other di-
rections. Importantly, they pointed out that formalized oversight mecha-
nisms are
not the ultimate overseer of the Court, nor is the Assembly of
States Parties. The aspirations of individuals and communities
made the Court and continue to provide its foundation. If the
leaders of the Court cannot retain their trust, their aspirations
will move on to other instruments for the betterment of hu-
mankind. 12
This broadening of the perspective influenced the more detailed con-
ceptualization of the Integrity Project of the Nuremberg Academy and
CILRAP in the months following the publication of the policy brief. It was
decided that the project would consider integrity in international justice
from more perspectives than mere codes and compliance mechanisms –
that it would also consider our understanding of integrity; historical, philo-
sophical and religious backgrounds to the evolution of the concept of integ-
rity in international justice frameworks; what builds awareness and cultures
of integrity; the roles of States, international organizations as well as inter-
national courts in increasing respect for integrity in international justice;
what (work on) specific cases can tell us about integrity in international
justice; and the relationship between the principles of integrity and inde-
pendence.
This wider approach was reflected in the policy brief “Revisiting In-
tegrity in International Justice” 13 and programme 14 of the international ex-
pert conference, which the Nuremberg Academy and CILRAP held in the
Peace Palace in The Hague on 1-2 December 2018. The presentations at the
event were made available on the project web page as films and podcasts
11
See, for example, Jan Fougner, “On Whistle-Blowing and Inquiry in Public Institutions”,
Chapter 16 below.
12
See Morten Bergsmo, Wolfgang Kaleck, Alexander S. Muller and William H. Wiley, “A
Prosecutor Falls, Time for the Court to Rise”, supra note 6.
13
See Morten Bergsmo, “Revisiting Integrity in International Justice”, FICHL Policy Brief
Series No. 93 (2018), TOAEP, Brussels, 2018 (http://www.toaep.org/pbs-pdf/93-bergsmo/).
14
The project web page contains links to the programme and related resources: https://
www.cilrap.org/events/181201-02-the-hague/.
viii
shortly after the event. 15 They have been extensively referred to by authors
in this book and used in the discourse leading up to the establishment of the
IER and the publication of this volume.
We are pleased to publish this anthology on the heels of the submis-
sion of the IER report, shortly before the Nineteenth Session of the ICC
Assembly of States Parties in December 2020. But we do not see the book
against a short-term horizon. Scrutinizing and strengthening integrity in
international justice is not a fleeting moment in the history of international
law. It should be a constant feature of the process to build an international
legal order. It is an activity and a discussion that should occur every day
within international justice institutions, and also involve outside stakehold-
ers. Our hope is that this anthology will aid such discussions – that it will
become a living reference book in international courts and tribunals, and
that it will inspire further analysis, research and writing.
Should there be sufficiently strong interest, we will consider whether
a second, expanded edition of the anthology should be published sometime
in the future. We would have liked to include even a greater variety of per-
spectives and experience in this first edition. We have deliberately invited
different views on issues, including critical contributions. It is through such
clashes of opinion that we may see the spark of truth and new ideas emerge.
Needless to say, we do not necessarily agree with all views expressed by
the authors, nor do they represent positions of the Nuremberg Academy or
CILRAP.
Two of the premises of the Integrity Project have been that individual
integrity in international justice institutions is the main focus, and that in-
tegrity is a legally binding standard in international courts and tribunals.
None of the chapters disagree with the latter, but several authors have gone
beyond individual integrity to also discuss institutional integrity. This is
understandable: the normative and systemic context of the institutions
frame the conduct of individuals serving in international courts to a consid-
erable extent. The book therefore includes both perspectives.
Considering the scarcity of international law sources on integrity in
international justice, the volume delves into a wide range of understandings
of integrity, going into philosophical, religious and cultural traditions,
viewing integrity as a moral authority, an ethical component, and a behav-
ioural norm. Beyond theoretical reflections on integrity as a concept, the
book addresses practical fringes for the implementation of integrity in in-
15
Ibid.
ix
ternational justice, while examining those actors who have a particular re-
sponsibility to uphold integrity and cultivate a culture of integrity due to
their leadership roles. The ethical-legal framework on integrity in interna-
tional justice and its relationship with independence is a cross-cutting topic
of the anthology.
We would first of all like to thank the authors who have contributed
to this volume, some of whom have spent several weeks of their time to
research and draft very comprehensive chapters. We thank the Director of
the Nuremberg Academy, Klaus Rackwitz, who has consistently supported
the Integrity Project over the past years. We also thank those who contrib-
uted to the international expert conference in The Hague in December 2018.
Furthermore, let us thank CHAN H.S. Icarus, Subham Jain and Antonio
Angotti of the Torkel Opsahl Academic EPublisher and Marialejandra
Moreno Mantilla and Marilena Stegbauer of the Nuremberg Academy for
outstanding assistance in the making of this book.
Their dedication and enthusiasm remind us that individual integrity –
or the human quality of rectitude – cannot entirely be reduced to statutory
provisions, judicial codes of ethics, or grievance and oversight mechanisms.
At the end of the day, integrity is about personal conduct and its motivation.
That is why we quote Dag Hammarskjöld in the place of the dedication of
this book: “Be grateful as your deeds become less and less associated with
your name, as your feet ever more lightly tread the earth”. 16 Hammarskjöld
was a mere 51 years old when he wrote this on 31 December 1956. He had
only served as United Nations Secretary-General for three years and eight
months at this time, and his tragic, premature death was five years into the
future. At the height of his power, he nevertheless expressed profound in-
sight into what should motivate our conduct. It is not recognition, reward,
election, appointment and promotion. By inviting us to tread the earth ever
more lightly, Hammarskjöld speaks to what should motivate our individual
service in international justice institutions (he is not suggesting that such
institutions should not leave deep footprints). 17 Several authors recognize
16
Dag Hammarskjöld, Markings, Ballantine Books, New York, 1983, p. 125. The Swedish
original – Vägmärken – was first published by Albert Bonniers Förlag AB in 1963. Dag
Hammarskjöld was Secretary-General of the United Nations Organisation from 1953 to
1961.
17
The footprints of international justice institutions are of direct relevance for legacies and
legacy building, on which there is recent literature, see, for example, Viviane E. Dittrich,
“Legacies in the Making at the ICTY”, in Carsten Stahn, Carmel Agius, Serge Brammertz
and Colleeen Rohan (eds.), Legacies of the International Criminal Tribunal for the Former
Yugoslavia: A Multidisciplinary Approach, Oxford University Press, 2020, p. 83; Viviane E.
Dittrich, “Legacies in the Making: Assessing the Institutionalized Legacy Endeavour of the
x
the importance of Hammarskjöld’s perspective in subsequent chapters of
this book. Hans Corell – former Under-Secretary-General for Legal Affairs
and the Legal Counsel of the United Nations – offers his insights in Chap-
ter 5 dedicated to “The Dag Hammarskjöld Legacy and Integrity in Interna-
tional Civil Service” and in his foreword to this volume.
Individual integrity cannot be artificially disconnected from the op-
eration of international organizations. The success of international justice
institutions depends on the individual integrity of their high officials and
staff members. If anything, the integrity-related challenges in the early life
of the ICC offer us an opportunity to realise the significance of integrity
provisions in statutory instruments of international courts and tribunals, as
we strive to strengthen these institutions and the international legal order in
the coming years and decades.
Morten Bergsmo and Viviane E. Dittrich
Florence and Nuremberg,
October 2020
Special Court for Sierra Leone”, in Charles C. Jalloh (ed.), The Sierra Leone Special Court
and Its Legacy: The Impact for Africa and International Criminal Law, Cambridge Univer-
sity Press, 2014, p. 663; and Viviane E. Dittrich, Present at the Completion: Creating Lega-
cies at the International Criminal Tribunals, book manuscript, October 2020.
xi
FOREWORD BY HANS CORELL
This book is the fruit of a remarkably interesting seminar on integrity in
international justice, co-organised by the Centre for International Law Re-
search and Policy and the International Nuremberg Principles Academy on
1-2 December 2018 in the Peace Palace in The Hague. In the seminar the
participants delivered addresses that were to be developed in light of the
discussions and published for the benefit of a wider audience. In the pro-
cess of editing these contributions the editors received additional articles.
This means that the book is now an impressive anthology that will serve as
a helpful reference book for judges, prosecutors, defence counsel, registrars
and other staff members of different kinds in international courts in the
coming years.
The book will also be of great importance for international organisa-
tions in general. A question that often comes to my mind is: why is it so
difficult to transfer wisdom from one generation to another? The book is an
important source of inspiration to facilitate the spreading of knowledge
from the past and from different religions and cultures. It contains valuable
lessons from ancient Greece and the Roman Empire via Thomas More’s
focus on the need for continuous learning in integrity to contributions from
individuals with personal experience from present day international courts
and organisations. No doubt, the anthology will broaden the readers’ per-
spectives.
The anthology also points to a central aspect in the process, namely
the importance of leading by example. One thing that I never forget from
the time when I served as a judge in my own country – see Chapter 5 on
the Dag Hammarskjöld Legacy – is the seriousness with which the senior
judges in the courts where I served carried out their daily duties. That
taught me a lesson for life. It became a lodestar for me in all my future
functions.
The book should also stimulate discussions that may lead to new or
improved codes of conduct or rules on ethics and perhaps innovative
mechanisms to ensure respect for the integrity standards. The analyses in
Part IV will be of assistance here. And, hopefully, states will realise the
great importance of giving appropriate weight to the integrity criterion
xiii
when filling positions in international courts. Another indispensable criteri-
on here, especially with respect to criminal courts, is courtroom experience.
This brings to the forefront the methods of staff recruitment in gen-
eral in international courts and other international organizations. The im-
portance of identifying individuals with the right qualifications and compe-
tences cannot be stressed enough. Ultimately, this will influence the institu-
tional integrity of the organization.
An additional advantage, resulting from the fact that the chapters of
the book will be freely available on the web in digital form, is that it should
be of great assistance in raising the awareness of the importance of integri-
ty in the courts at the national level. Therefore, national judges’ associa-
tions, prosecutors’ associations and bar associations should be made aware
of the book. This will also put them in a position to inform their members
of the same and to draw particular attention to and disseminate chapters
that are of special relevance to their profession and to their country. Anoth-
er obvious addressee at the national level is academia.
The articles in the book also make clear the connexion between Sus-
tainable Development Goal 16 on equal justice for all with its targets focus-
ing on the need for the rule of law and anti-corruption and the need for im-
plementing this goal also at the international level. In this context the re-
sponsibility that politicians have should be highlighted. Whether they serve
in the executive or the legislative branch they should find guidance in the
book.
Finally, all readers of the book will no doubt ask themselves what
lessons they can learn from its contents and come to the conclusion that it
may influence their understanding and provide guidance in their daily ac-
tivities. Against this background the book should be a must-read in wide
circles both at the national and international level.
Ambassador (ret.) Hans Corell
Former Under-Secretary-General for Legal Affairs and
the Legal Counsel of the United Nations
xiv
FOREWORD BY RICHARD J. GOLDSTONE
It was my privilege and pleasure to attend and participate in the conference
on Integrity in International Justice that was convened at the Peace Palace
in The Hague on 1-2 December 2018. This anthology is the outcome of the
papers and discussions that were held on that occasion. Morten Bergsmo
and Viviane E. Dittrich are to be congratulated for pursing this endeavour
with their usual efficiency, insight and vigour.
The integrity of any court system lies at the very core of its mission.
Without it, inevitably, there will be an absence of confidence in the judges
and the outcome of cases that come before them will be questioned. Judges
have no police or military force to ensure the implementation of their or-
ders. They must perforce rely on the respect for their decisions by the other
branches of government. Their allegiance must be owed solely to the appli-
cation of the law and adhere to an ethical code to guide their work. This
applies to all national systems of justice.
International courts are staffed by women and men from many coun-
tries around the globe. They represent different systems and traditions of
legal practice. They are required to put aside those national systems and
join a comparatively new endeavour. One of their most important tasks is
to build confidence in their new institutions and that includes abiding by a
code of ethics and a culture of integrity.
The Independent Expert Review Group appointed by the Assembly
of States Parties to review the working of the International Criminal Court
and the Rome Statute system recently submitted its report. It is significant,
in the present context, that its many findings and recommendations include
a number on “Ethics and Prevention of Conflict of Interest” and “Internal
Grievance Procedures”. I firmly believe that the present anthology will
contribute to the momentum around the tremendous importance of integrity
in international justice.
Richard J. Goldstone
Formerly, Justice of the Constitutional Court of South Africa and
Chief Prosecutor, International Criminal Tribunals
for the former Yugoslavia and Rwanda
xv
TABLE OF CONTENTS
Foreword by the Series Editor .......................................................................... i
Preface by the Co-Editors .............................................................................. iii
Foreword by Hans Corell ............................................................................. xiii
Foreword by Richard J. Goldstone ................................................................. xv
Integrity as Safeguard Against the Vicissitudes of International

Justice Institutions.................................................................................... 1
By Morten Bergsmo and Viviane E. Dittrich
1. Multilateralism Under Pressure, Increased Scrutiny of
Integrity in International Justice ....................................................... 4
2. Conceptual Structure and Direction .................................................. 9
3. Meaning of ‘Integrity’ .................................................................... 13
4. Awareness and Culture of Integrity ................................................ 17
5. Role of International Organizations and States .............................. 21
6. Role of International Courts ........................................................... 24
7. Integrity and the Lens of Cases ...................................................... 27
8. Independence and Integrity ............................................................ 29
9. Growing Recognition of the Importance of Integrity ..................... 33
10. The Will to Let Integrity and Uprightness Distinguish Our Acts ... 38
PART I:
MEANING OF INTEGRITY
1. Physically Upright, Morally Sound: Recreating Ancient ‘Integrity’ ..... 47
By Emiliano J. Buis
1.1. Introduction ................................................................................ 47
1.2. Origins of ‘Integrity’?................................................................. 48
1.3. Recreating Integrity in Classical Athens .................................... 56
1.4. Recreating Integrity in Republican Rome .................................. 70
1.5. Ancient Integrity Today: A Reappraisal of Classical Values
in Times of Moral Crisis? ........................................................... 81
xvii
2. Integer Vitae: Christian Sources and Reflections on Integrity in
Justice..................................................................................................... 85
By Hanne Sophie Greve
2.1. Introduction ................................................................................ 85
2.1.1. Definition ....................................................................... 85
2.1.2. Ethics ............................................................................. 86
2.2. Basic Concepts ........................................................................... 86
2.2.1. Human Faculties ............................................................ 86
2.2.2. Controlling Powers ........................................................ 87
2.3. The Cardinal Virtues ................................................................... 88
2.3.1. Prudence ........................................................................ 88
2.3.2. Justice ............................................................................ 89
2.3.3. Temperance .................................................................... 90
2.3.4. Fortitude ......................................................................... 90
2.4. The Theological Virtues.............................................................. 91
2.4.1. Faith ............................................................................... 91
2.4.2. Hope ............................................................................... 91
2.4.3. Charity ........................................................................... 92
2.5. Some Concluding Remarks ........................................................ 92
3. Sharí‘ah Sources and Reflections on Integrity ...................................... 93
By Adel Maged
3.1. Introduction ................................................................................ 93
3.2. Methodology ............................................................................... 98
3.3. Adab Al-Qāḍī: A Comprehensive Resource in Sharí‘ah on
the Judiciary .............................................................................. 101
3.4. Methodological Consideration Regarding the Meaning of
Adab Al-Qāḍī ............................................................................ 102
3.5. The Concept of Judicial Integrity? ........................................... 103
3.6. The Status of Sharí‘ah: An Overview....................................... 104
3.7. The Importance of Justice in Sharí‘ah...................................... 105
3.8. The Status of the Judiciary in Sharí‘ah .................................... 106
3.8.1. Sharí‘ah on the Appointment of Judges....................... 108
3.8.2. The Status of Judges in Sharí‘ah ................................. 109
3.8.3. The Gravity of the Function of Al-Qāḍī in Sharí‘ah ... 110
3.9. Qualifications of Judges in Sharí‘ah ........................................ 113
3.9.1. Prerequisite Qualifications of the Al-Qāḍī ................... 114
3.10. Meaning of Integrity in the Arabic Language........................... 117
3.11. Meaning of Judicial Integrity in Sharí‘ah ................................ 117
3.12. Why Judicial Integrity Is Significant in Sharí‘ah ..................... 119
3.13. Reflections in Sharí‘ah Sources on Judicial Integrity .............. 120
xviii
3.14. Personal Judicial Integrity of the Al-Qāḍī in Sharí‘ah ............. 122
3.15. Professional Judicial Integrity of Al-Qāḍī in Sharí‘ah ............. 126
3.15.1. Integrity and Recognised Professional Qualities ......... 129
3.15.2. Sharí‘ah Perspectives on the Emotional Integrity of
Al-Qāḍī ........................................................................ 134
3.15.3. A Proposed Definition of Judicial Integrity Derived
from Sharí‘ah Sources ................................................. 138
3.15.4. Some Indications of Judicial Integrity from a
Sharí‘ah Perspective .................................................... 139
3.15.5. Loss of Integrity........................................................... 140
3.16. Conclusion ................................................................................ 144
Appendix I: The Message of Caliph Umar Ibn Al-Khaṭṭáb
on the Judiciary......................................................................... 148
Appendix II: The Message of Alī Ibn Abī Ṭālib to Mālik Al-
Ashtar on the Judiciary ............................................................. 150
4. Sir Thomas More and Integrity in Justice ............................................ 151
By Gunnar M. Ekeløve-Slydal
4.1. Integrity Failures in International Political Institutions ............ 153
4.1.1. Biased Election Observation........................................ 154
4.1.2. Corruption in the Parliamentary Assembly of the
Council of Europe ........................................................ 158
4.1.3. Integrity Issues in International Police and Judicial
Institutions ................................................................... 160
4.2. Typology of Integrity Issues ..................................................... 167
4.2.1. Politicization or Instrumentalization of Institutions .... 169
4.2.2. Professional Integrity ................................................... 174
4.2.3. The Role of Exemplary Stories and Personalities........ 179
4.3. Civilizing Politics ..................................................................... 181
4.3.1. The Ever-Present Danger of Tyranny .......................... 183
4.3.2. The Fundamental Question of Integrity ....................... 189
4.4. More as Statesman .................................................................... 195
4.4.1. Uncorrupted Fairness ................................................... 197
4.4.2. Why Did More Hunt Heretics? .................................... 198
4.5. More’s Conflict with Henry VIII .............................................. 203
4.5.1. The Ultimate Test of Integrity ..................................... 206
4.6. More’s Integrity Lessons .......................................................... 209
4.7. Integrity in Justice .....................................................................211
xix
5. The Dag Hammarskjöld Legacy and Integrity in International Civil
Service ................................................................................................. 213
By Hans Corell
5.1. Dag Hammarskjöld on the International Civil Servant in
Law and in Fact ........................................................................ 213
5.2. The Conclusions in Dag Hammarskjöld’s Lecture ................... 216
5.3. Integrity in International Justice ............................................... 219
5.4. Dag Hammarskjöld’s Waymarks – Also Named Markings....... 222
5.5. Conclusion ................................................................................ 226
6. Multicultural Understanding of Integrity in International
Criminal Justice ................................................................................... 229
By Juan Carlos Botero
6.1. Introduction .............................................................................. 229
6.2. Judicial Integrity and Independence in the ‘Western’ Legal
Tradition – Historical Divergence ............................................ 238
Tradition in Historical Perspective ........................................... 240
6.4. The Bangalore Principles of Judicial Conduct: A ‘Universal’
Understanding of Integrity and Independence in Justice .......... 242
6.5. A Multicultural Understanding of Integrity and
Independence as Viewed by Citizens........................................ 245
6.6. Judicial Integrity from the People’s Perspective:
Implications for the ICC ........................................................... 249
6.7. Judicial Integrity and Independence under the ‘African
Tree’: Customary Justice as Perceived by Users ...................... 251
6.8. The Bangalore Principles of Judicial Conduct and Articles
36(3)(a) and 42(3) of the Rome Statute, under the ‘African
Tree’ .......................................................................................... 256
6.9. Is There a Truly Universal Understanding of Judicial
Integrity and Independence? ..................................................... 260
6.10. People Need Justice: Integrity Also Means Timeliness ............ 265
6.11. Implications for International Criminal Justice and the ICC .... 265
7. Ethics, Integrity and the Bemba Acquittal ........................................... 269
By Shannon Fyfe
7.1. Introduction .............................................................................. 269
7.2. Individual Integrity ................................................................... 271
7.2.1. Integrity for Individual Actors ..................................... 271
7.2.2. Prosecutorial Ethics and Individual Integrity .............. 280
xx
7.2.3. Judicial Ethics and Individual Integrity ....................... 285
7.3. Institutional Integrity ................................................................ 288
7.3.1. Integrity for Institutional Actors .................................. 288
7.3.2. Integrity of the OTP ..................................................... 293
7.3.3. Integrity of the Judiciary .............................................. 296
7.3.4. Integrity of the Court and International Criminal
Law .............................................................................. 297
7.4. Case Study: The Bemba Acquittal ............................................ 298
7.4.1. Bemba Judgment and Appeal....................................... 299
7.4.2. Integrity of the Prosecutor and the OTP ...................... 302
7.4.3. Integrity of the Judges and the Appeals Chamber ....... 303
7.4.4. Integrity of the Court ................................................... 304
7.5. Conclusion ................................................................................ 304
PART II:
AWARENESS AND CULTURE OF INTEGRITY
8. Conformity, Leadership and the Culture of Integrity at the
International Criminal Court ................................................................ 309
By Brigid Inder
8.1. Introduction .............................................................................. 309
8.2. Mandate and Significance of the ICC........................................311
8.3. Credibility in Question ............................................................. 313
8.4. Relationship between the ICC and the United Nations ............ 315
8.4.1. Independence of the ICC ............................................. 315
8.4.2. Relationship Agreement............................................... 317
8.5. Building the Institution ............................................................. 319
8.5.1. ICC Staff Regulations and Rules ................................. 319
8.5.2. International Civil Servants ......................................... 322
8.5.3. Prohibited Behaviour: Sexual and Other Forms of
Harassment .................................................................. 327
8.5.4. Office of the Prosecutor ............................................... 332
8.5.5. An Enabling Political Environment ............................. 335
8.6. Ethical Challenges at the ICC ................................................... 340
8.6.1. Public Crises Exposed by the Media ........................... 342
8.6.2. Checks and Balances ................................................... 345
8.6.3. Limited Infrastructure to Support and Ensure the
Court’s Institutional Integrity ...................................... 357
8.7. Case Study: ReVision ............................................................... 360
8.7.1. Background .................................................................. 363
8.7.2. Examination ................................................................. 365
xxi
8.7.3. Exercise of the Registrar’s Authority ........................... 376
8.7.4. Duty of Care and Treatment of Colleagues.................. 378
8.7.5. Internal Oversight System ........................................... 379
8.7.6. Misleading Data ........................................................... 384
8.7.7. Governance .................................................................. 390
8.8. Conclusion ................................................................................ 395
9. Effective Leadership, Management and Integrity in International
Criminal Investigations ........................................................................ 397
By William H. Wiley
9.1. Introduction .............................................................................. 397
9.2. The Roots of International Criminal Investigative
Insufficiency ............................................................................. 400
9.3. Leadership and Management in International Courts and
Tribunals ................................................................................... 404
9.3.1. Leadership.................................................................... 405
9.3.2. Management ................................................................ 406
9.3.3. OTP Leaders, Managers and Followers ....................... 407
9.4. Institutional Loyalty ................................................................. 408
9.5. Failures of Discipline and Integrity at the ICTR, the ICTY
and the ICC ............................................................................... 411
9.5.1. ICTR ............................................................................ 411
9.5.2. ICTY ............................................................................ 413
9.5.3. ICC ............................................................................... 416
9.6. Leadership at the OTPs of the ICTY, the ICTR and the ICC ... 417
9.6.1. ICTR ............................................................................ 417
9.6.2. ICTY ............................................................................ 419
9.6.3. ICC ............................................................................... 420
9.7. Leadership, Professional Integrity and Their Intersection
with International Investigative Processes................................ 423
9.7.1. Investigators ................................................................. 423
9.7.2. Analysts ....................................................................... 424
9.7.3. Counsel ........................................................................ 424
9.7.4. Case-Building Arrangements at the ICTY and the
ICTR During Their Formative Years ........................... 425
9.7.5. Investigations Division Reforms at the Ad Hoc
Tribunals ...................................................................... 427
9.7.6. The Effective Management of Case-Building
Processes ...................................................................... 429
9.8. Conclusion ................................................................................ 429
xxii
10. Decency as a Prerequisite to Integrity in International Proceedings.... 433
By Andrew T. Cayley
10.1. Introduction .............................................................................. 433
10.2. The Prosecutor v. Radislav Krstić ............................................ 438
10.3. The Prosecutor v. Nikola Šainović, Dragoljub Ojdanić,
Nebojša Pavković, Vladimir Lazarević, Sreten Lukić and
Milan Milutinović ..................................................................... 453
10.4. Conclusion ................................................................................ 464
11. Only the Best Should Prosecute and Judge in International Justice .... 467
By Julija Bogoeva
11.1. Introduction .............................................................................. 467
11.2. The Context: These Are Not Times of Integrity ....................... 468
11.3. The Best Are Needed ................................................................ 473
11.4. Impunity of the Most Powerful Must End ................................ 477
11.4.1. Culture of Untruth and International Criminal
Justice .......................................................................... 477
11.4.2. Full Protection for Whistle-Blowers ............................ 480
11.5. Without Integrity, International Justice Is a House of Cards .... 483
11.6. Conclusion ................................................................................ 486
12. The Role of Aesthetics in Furthering Integrity .................................... 489
By Marina Aksenova
12.1. Aesthetics, Integrity and the Internal Values of International
Criminal Justice ........................................................................ 489
12.2. Theoretical Frameworks for Discussing the Role of
Aesthetics in Promoting Integrity ............................................. 494
12.2.1. Natural Law Theory ..................................................... 494
12.2.2. Visual Methodology in the Age of the Digital
Baroque ........................................................................ 496
12.2.3. The Connection Between Ethics and Aesthetics.......... 499
12.2.4. The Role of Art in Evoking the Truth-Content ............ 500
12.3. Art as a Vehicle of Transformative Change .............................. 502
12.3.1. Viewing International Criminal Proceedings as an
Aesthetic Experience ................................................... 502
12.3.2. Methodological Advantages of Using Art in the
Field of International Justice ....................................... 507
12.3.3. Practical Example of Using Art in International
Criminal Law ............................................................... 508
12.4. Conclusion .................................................................................511
xxiii
PART III:
ROLE OF INTERNATIONAL ORGANIZATIONS AND STATES
13. Institutional Ethics, Individual Integrity, and Sexual Harassment:
Recent Developments in Ethics Standard-Setting and Mechanisms
at the United Nations ........................................................................... 515
By Dieneke T. de Vos
13.1. Introduction .............................................................................. 515
13.2. The UN’s ‘Regulatory’ Ethics Infrastructure ............................ 518
13.3. The UN’s ‘Institutional’ Ethics Infrastructure .......................... 527
13.4. Ethics Infrastructure and Sexual Harassment ........................... 536
13.5. Conclusion: Redistributing Power and Culture Change ........... 548
14. Sexual Harassment ............................................................................... 551
By Matthias Neuner
14.1. Impact on Target’s Health and Thus on Work Environment ..... 552
14.2. History ...................................................................................... 553
14.2.1. International and Domestic Efforts to Define Sexual
Harassment .................................................................. 553
14.2.2. Standard-Setting Phase ................................................ 560
14.3. Evolution of the Definition of Sexual Harassment ................... 564
14.3.1. First Element: Twofold Evolution................................ 564
14.3.2. Second Element: Unwelcome ...................................... 570
14.4. Case Law on Sexual Harassment .............................................. 574
14.4.1. First Judgment on Sexual Harassment at the UN ........ 574
14.4.2. A Close Friendship with Sexual Overtones Went
Cold.............................................................................. 575
14.4.3. UNHCR Case in Budapest ........................................... 578
14.4.4. Bagot v. S-G ................................................................. 580
14.4.5. Perelli v. S-G ................................................................ 582
14.5. Superiors ................................................................................... 584
14.5.1. Acting Twofold upon Receiving Information .............. 584
14.5.2. Training in Informal Mediation to Become A ‘Role
Model’.......................................................................... 586
14.5.3. Senior Position Demands a Higher Level of
Sensitivity .................................................................... 587
14.5.4. Heads of Department, Office or Mission ..................... 588
14.6. Conclusion ................................................................................ 591
xxiv
15. Integrity and the Work of the European Ombudsman ......................... 593
By Marta Hirsch-Ziembinska and Vieri Biondi
15.1. Introduction .............................................................................. 593
15.2. Ombudsmen Institutions and the Principle of Integrity ............ 593
15.3. The European Ombudsman ...................................................... 594
15.4. Fostering the Integrity of EU Administration ........................... 597
15.4.1. The So-Called Revolving Doors Phenomenon ............ 598
15.4.2. The Transparency of the Expert Groups Advising
the European Commission ........................................... 600
15.4.3. Lobbying...................................................................... 602
15.5. Conclusion ................................................................................ 603
16. On Whistle-Blowing and Inquiry in Public Institutions ...................... 605
By Jan Fougner
16.1. Introduction .............................................................................. 605
16.2. Do Whistle-Blowing Procedures and Inquiries Constitute
Means to Guarantee Integrity? ................................................. 607
16.3. How May Such Means Effectively Achieve the End of
Inculcating the Virtue of Integrity in Justice Institutions? ........ 610
16.4. Closing Remarks ...................................................................... 612
17. Private International Criminal Investigations and Integrity ................. 615
By Alexander Heinze
17.1. Introduction .............................................................................. 615
17.2. The Occurrence of Private Investigations in International
Criminal Justice ........................................................................ 619
17.2.1. Historical Observations ............................................... 619
17.2.2. Special Focus: Private International Criminal
Investigations in Syria ................................................. 624
17.3. Advantages of Private International Criminal Investigations ... 627
17.4. Terminological Remarks........................................................... 631
17.5. Private Investigations: A Matter of Ethics and Integrity .......... 634
17.5.1. The Ethical Problem with Private Investigations ........ 634
17.5.2. Integrity as the Central Value for Private
Investigators................................................................. 641
17.5.3. Consequences for Private Investigators at the
International Level ....................................................... 732
17.6. Conclusion ................................................................................ 737
xxv
PART IV:
ROLE OF INTERNATIONAL COURTS
18. Codes of Judicial Ethics: An Emerging Culture of Accountability
for the Judiciary?.................................................................................. 741
By Bettina Julia Spilker
18.1. Introduction .............................................................................. 741
18.2. Regulation of Judicial Ethics – A Beginning ............................ 742
18.3. Codes of Judicial Ethics – Applicable Standards...................... 751
18.3.1. Preamble and Legal Basis ............................................ 752
18.3.2. Applicable Standards ................................................... 759
18.4. Codes of Judicial Ethics – Disciplinary Procedures ................. 773
18.4.1. Disciplinary Offences .................................................. 774
18.4.2. Procedure before the KSC and the IRMCT ................. 777
18.4.3. Procedure before the ICC ............................................ 783
18.4.4. Conclusion ................................................................... 788
18.5. Final Remarks ........................................................................... 790
19. Reflections on Integrity in International Criminal Justice and
Regional Human Rights Courts ........................................................... 795
By Erik Møse
19.1. Introduction .............................................................................. 795
19.2. General Remarks ...................................................................... 796
19.3. Inefficiency ............................................................................... 798
19.4. Personal Integrity – Some Illustrations..................................... 801
19.5. The Way Forward ..................................................................... 803
19.6. Final Remarks ........................................................................... 808
20. Integrity and Independence in the Delivery of Accountability:
Harnessing International and Domestic Frameworks in Pursuit of
Justice for ISIL Crimes ........................................................................ 811
By Karim A.A. Khan and Jonathan Agar
20.1. Introduction .............................................................................. 811
20.2. The Normative Integrity Framework for the Establishment
of a United Nations Criminal Accountability Mechanism........ 816
20.2.1. The Crimes of ISIL and a Response by the
International Community ............................................. 816
20.2.2. The Normative Integrity Framework of the United
Nations Investigative Team to Promote
Accountability for the Crimes Committed by
Da’esh/ISIL.................................................................. 818
xxvi
20.3. The Development and Implementation of Integrity Policies
in the Operationalization of an International Criminal Justice
Mechanism ............................................................................... 828
20.3.1. Building a Team Aligned with Principles of Integrity
and Independence ........................................................ 830
20.3.2. Integrity in Engagement with Survivors, Witnesses
and Impacted Communities ......................................... 834
20.3.3. Institutional Integrity and Independence as an
Operational Tool .......................................................... 840
20.4. Conclusion: The Central Role of Integrity in the Delivery of
Justice ....................................................................................... 842
21. The Wider Policy Framework of Ethical Behaviour: Outspoken
Observations from a True Friend of the International Criminal
Court .................................................................................................... 845
By Cyril Laucci
21.1. Introduction .............................................................................. 845
21.1.1. Five Examples ............................................................. 847
21.2. Overview of the Structure of the Internal Legal and Policy
Framework of the International Criminal Court ....................... 848
21.2.1. Instances of Non-Observance of the Terms of the
Presidential Directive of 2003 ..................................... 849
21.2.2. The Rank of the Presidential Directive of 2003 .......... 852
21.3. Main Areas of Policy Gaps and Their Potential Impact on
the Perception of Integrity at the ICC ....................................... 854
21.3.1. Selection of Staff Members ......................................... 855
21.3.2. Field Operations .......................................................... 857
21.3.3. Staff Appeal and Disciplinary Procedures, Including
the Independent Oversight Mechanism ....................... 863
21.3.4. Anti-Fraud and Whistleblowing Policies ..................... 868
21.3.5. Protection of Information ............................................ 870
21.4. Conclusion ................................................................................ 873
22. Does the International Criminal Court Really Need an Ethics
Charter?................................................................................................ 875
By Suhail Mohammed and Salim A. Nakhjavani
22.1. Introduction .............................................................................. 875
22.2. Does the Existing Ethical Framework Communicate a
“Moral Message”? .................................................................... 880
22.2.1. The Lubanga Trial ....................................................... 882
22.2.2. The Darfur Situation and the Prosecutor’s Editorial.... 884
xxvii
22.2.3. The Ruto and Sang and Gbagbo Trials ........................ 887
22.2.4. Reflection ..................................................................... 890
22.3. Entrenching the ICC’s “Moral Message” in Practice ............... 890
22.4. Double Deontology: Desperately Seeking Coherence.............. 898
22.5. What Might the External Auditor Have Hoped to Achieve? .... 901
PART V:
INTEGRITY AND THE LENS OF CASES
23. Reflections on Integrity in the Prosecution of International Cases ...... 905
By Teresa McHenry and Ann Marie Ursini
23.1. Introduction .............................................................................. 905
23.2. International Justice: Inside and Outside Perspectives ............. 906
23.3. Investigations and Resources .................................................... 907
23.4. Witnesses .................................................................................. 909
23.4.1. Witness Preparation ..................................................... 909
23.4.2. Witness Statements ...................................................... 910
23.4.3. Witness Security and Privacy ...................................... 911
23.5. Discovery and Disclosure ......................................................... 912
23.6. Institutional Ethics Advice and Support ................................... 912
23.7. Courtroom Conduct and Personnel ........................................... 914
23.8. Conclusion ................................................................................ 916
24. Individual Integrity and Independence of Judges: The Akay Saga ...... 919
By Antonio Angotti, Basil Saen and Shan Patel
24.1. Introduction .............................................................................. 919
24.2. Reflections on Questions of Integrity of the Concerned
Individuals ................................................................................ 921
24.2.1. The Akay Saga ............................................................. 921
24.2.2. Questions of Integrity for Selected Individuals ........... 927
24.3. Institutional, Professional and Personal Integrity: One and
the Same? .................................................................................. 947
25. The Disqualification of Judge Frederik Harhoff:
Implications for Integrity ..................................................................... 951
By Mohamed Badar and Polona Florijančič
25.1. Disqualification without Bias ................................................... 952
25.2. Was Judge Harhoff Really Wrong about a Change in
Jurisprudence? .......................................................................... 962
25.2.1. Specific Direction ........................................................ 962
xxviii
25.2.2. The Case of Gotovina and Joint Criminal Enterprise .. 970
25.3. Punishment for Questioning the Court’s Independence?.......... 972
25.3.1. Claims of Pressure Exerted on Fellow Judges ............. 974
25.4. Conclusion ................................................................................ 980
26. Integrity in International Criminal Law: Post-Conviction
Proceedings .......................................................................................... 983
By Gregory S. Gordon
26.1. Introduction .............................................................................. 983
26.2. Proceedings at the ICTR ........................................................... 986
26.2.1. The Prosecutor v. Nahimana: Background .................. 986
26.2.2. The Trial Chamber Proceedings .................................. 988
26.2.3. The Appeals Chamber Proceedings ............................. 989
26.2.4. Meron’s Dissent ........................................................... 992
26.3. Developments Post-ICTR Proceedings .................................... 994
26.3.1. Judge Meron’s Nomination to the MICT..................... 994
26.3.2. Nahimana’s Incarceration and Application for Early
Release ......................................................................... 994
26.3.3. Examination of the Early Release Decision ................ 996
26.4. Overall Analysis of the Early Release Decision ..................... 1003
26.4.1. Failure to Comply with MICT RPE Rules 151
and 150 ...................................................................... 1003
26.4.2. Failure to Comply with Principles of Integrity .......... 1010
26.4.3. The Integrity Deficits Placed in Perspective: The
Residual Special Court for Sierra Leone ................... 1014
26.4.4. Summary of Integrity Deficits in the Nahimana
Early Release Decision .............................................. 1016
26.5. Recommended Reforms ......................................................... 1016
26.5.1. Providing for Broader Deontological Coverage
Within the Existing MICT Governing Documents .... 1017
26.5.2. Fixing Early Release Decision Protocols and
Procedure ................................................................... 1017
26.6. Conclusion .............................................................................. 1021
PART VI:
INDEPENDENCE AND INTEGRITY
27. Judicial Independence and Accountability at International Criminal
Courts and Tribunals .......................................................................... 1027
By Ivana Hrdličková and Adrian M. Plevin
27.1. Introduction ............................................................................ 1027
xxix
27.2. The Integrity-Accountability Paradigm .................................. 1030
27.3. Judicial Independence and Accountability ............................. 1034
27.4. International Standards Regulating the Accountability of
Judges ..................................................................................... 1043
27.4.1. Early Efforts to Regulate Judicial Accountability
and Independence ...................................................... 1043
27.4.2. UN System: Towards Possible Universality .............. 1046
27.4.3. Regional Initiatives .................................................... 1048
27.4.4. Judicial Regulation in the Twenty-First Century ....... 1049
27.5. Regulating Judicial Conduct at International Criminal
Courts and Tribunals ............................................................... 1053
27.5.1. Litigation as a Means of Ensuring Accountability ..... 1053
27.5.2. Codes of Conduct and Accountability
Mechanisms ............................................................... 1057
27.5.3. The Paris Declaration: A Vision of the Future? ......... 1059
27.6. Conclusion .............................................................................. 1063
28. Prosecutorial Language, Integrity and Independence ........................ 1065
By Richard J. Goldstone
28.1. Introduction ............................................................................ 1065
28.2. The Political Pressure on Prosecutors from Outside the
Institution and Contact with Governmental Officials ............. 1066
28.3. Relationship with the United Nations Secretary-General ....... 1069
28.4. The International Criminal Tribunal for Rwanda ................... 1073
28.5. Civil Society ........................................................................... 1075
28.6. Conclusion .............................................................................. 1077
29. Integrity and the Preservation of Independence in International
Criminal Justice ................................................................................. 1079
By David Donat Cattin and Melissa Verpile
29.1. Introductory Notes: An NGO’s Perspective ........................... 1079
29.2. Towards the Inception of an International Rule of Law:
The Creation of the Rome Statute of the ICC ......................... 1081
29.3. The Statutory Requirement of Integrity: The Mere
Application of the Rome Statute? ........................................... 1082
29.4. The Preservation of Independence and Integrity at the ICC
Despite its Assembly of States Parties (ASP) ......................... 1084
29.5. Reconciling Ideals and Reality: A Functional Approach ........ 1086
29.6. Ailments Stemming from the Functioning of the ICC Are
Not a Fatality .......................................................................... 1091
xxx
29.7. Moving Forward to Protect the Integrity of the
Rome Statute .......................................................................... 1092
30. Integrity and Independence: Common Standards and Uneven Cost
of Implementation .............................................................................. 1095
By Adedeji Adekunle
30.1. Introduction ............................................................................ 1095
30.2. Ethical Gaps in the Prosecutorial Function of the Court ........ 1097
30.3. Uniform Standards of Integrity and Ethics Code ................... 1099
30.3.1. Judges .........................................................................1101
30.3.2. Office of the Prosecutor ..............................................1102
30.4. Pressures ..................................................................................1102
30.4.1. Political Pressure ........................................................1103
30.4.2. Economic Pressure .....................................................1104
30.4.3. Historical Pressure ......................................................1106
30.4.4. Socio-Cultural Pressure ..............................................1107
30.4.5. Post-Employment Pressures .......................................1109
30.5. An Ethics Compliance Mechanism ......................................... 1111
30.6. Conclusion ............................................................................... 1115
31. Integrity and the Inevitable Political Exposure of International
Criminal Justice .................................................................................. 1117
By Christopher Staker
32. Some Reflections on Integrity in International Justice .......................1125
By David Re
32.1. No International Justice System Exists ...................................1125
32.2. Some Personal National Experiences ......................................1126
32.3. The Institutions of International Justice ..................................1128
32.4. As an International Prosecutor: Some Institutional Integrity
Issues .......................................................................................1129
32.5. As an International Judge: Some Institutional Integrity
Issues .......................................................................................1131
32.6. The Political Dimension ..........................................................1133
32.7. Are There Too Many Structural Impediments to Achieve
Institutional Integrity? Some Suggestions ...............................1136
32.8. Conclusion: Cautious Optimism Tempered by Realism ..........1138
Index ...........................................................................................................1141
TOAEP Team ..............................................................................................1159
Other Volumes in the Nuremberg Academy Series .....................................1161
xxxi
______
Integrity as Safeguard Against

the Vicissitudes of
International Justice Institutions
By Morten Bergsmo and Viviane E. Dittrich *
The topical salience and urgency of recognising and revisiting integrity in

international justice has come into sharper relief through countless conver-
sations, contributions and contexts. This book is the most tangible result to
date of the Integrity Project undertaken by the International Nuremberg
Principles Academy and the Centre for International Law Research and
Policy (‘CILRAP’). It draws on papers invited for an international confer-
ence held in the Peace Palace in The Hague on 1-2 December 2018, 1 and
some additional chapters. The conference brought together more than 40
leading scholars and practitioners from Africa, America, Asia and Europe
engaged in high-level discussions and insightful reflections and sugges-
tions on the upholding of integrity in international justice. During the open-
ing session, Deputy Prosecutor of the International Criminal Court (‘ICC’),
James Stewart, emphasized the legal requirement of individual integrity
and its relevance in the prosecution of international crimes. The importance
*
Morten Bergsmo is Director of the Centre for International Law Research and Policy
(‘CILRAP’). He was the first Legal Officer hired by the Office of the Prosecutor of the In-
ternational Criminal Tribunal for the Former Yugoslavia (1994-2002), and he subsequently
led the preparatory team that established the International Criminal Court’s Office of the
Prosecutor and served as its first Senior Legal Adviser (2002-2005). He has been an aca-
demic at leading institutions in China, Europe and the United States. Viviane E. Dittrich is
Deputy Director of the International Nuremberg Principles Academy. She is also Visiting
Fellow at the Centre for International Studies, London School of Economics and Political
Science (‘LSE’). Previously, she has been Honorary Research Associate at Royal Holloway,
University of London, and Visiting Researcher at iCourts (Centre of Excellence for Interna-
tional Courts), University of Copenhagen. She has published on the notion of legacy and the
process of legacy building at the international criminal tribunals and has taught on interna-
tional institutions, the politics of international law, global crime, and US foreign policy at
the LSE, Royal Holloway, and Sciences Po Paris. Views expressed in this chapter do not
necessarily reflect the views of CILRAP or the Nuremberg Academy.
1
The Integrity Project web page contains links to the conference programme, films and pod-
casts of the conference presentations, and related resources, see https://www.cilrap.org/
events/181201-02-the-hague/.
Nuremberg Academy Series No. 4 (2020) – page 1

of integrity in international justice was also highlighted by Judge Marc Per-

rin de Brichambaut and Judge Erik Møse in their opening remarks. The
book is not mere conference proceedings, but the result of deliberate con-
ceptual development by a group of involved international lawyers and ex-
perts. Our Preface above explains the main steps that have led to the book,
starting with observations made within the Office of the Prosecutor of the
ex-Yugoslavia tribunal in 1994-95, until the release of the final report of
the Independent Expert Review (‘IER’) on 30 September 2020, 2 a few
weeks before the publication of the first edition of the book. The Preface
provides some of the background to the development of the Integrity Pro-
ject, and is thus best read in conjunction with this introductory chapter to
the book.
This chapter is divided into 10 Sections. First, it considers the con-
text of increased scrutiny of international justice institutions, against a
background of more pressure on multilateralism, including from permanent
members of the United Nations Security Council (Section 1 below). Section
2 provides an overview of the conceptual structure and direction of the
book as well as the wider Integrity Project. As it turns out, there has been
considerable conceptual consistency since the earlier stages of the project,
through the Peace Palace conference in December 2018, to the present an-
thology, even if it involves 43 contributors and more than 1,100 pages of
material. The main conceptual building blocks – corresponding to the six
parts of this book – are described in Sections 3 to 8 below. Each of these
sections contains a summary of the chapters that fall within the part to pro-
vide a comprehensive yet succinct overview of the contributions. Section 9
shows the growing recognition of the importance of integrity in interna-
tional organizations, and discusses in some detail the final report of the In-
dependent Expert Review of the ICC. Section 10 distils some of the main
findings and areas of convergence between the chapters in the book, focus-
ing on issues such as individual integrity in international justice, the will or
motivation to integrity, accountability for breaches of integrity, awareness
of integrity, and the need to be open to multi-disciplinary perspectives in
the discourse on integrity in international justice.
While this is the first book on integrity in international justice, there
has been a growing corpus of writing on integrity more broadly. The con-
2
Status System, Final Report”, 30 September 2020 (‘IER report’) (https://www.legal-

Integrity as Safeguard Against the Vicissitudes
of International Justice Institutions
cept of ‘integrity’ is used in multifarious ways in the literature. 3 This may

raise methodological questions in specific contexts. 4 For example, from the
perspective of institutional design, drawing on a distinction between ‘the
logic of consequences’ and the ‘logic of appropriateness’, it may be useful
to distinguish between formal prescription and rule-compliance, on the one
hand, and norm setting and cultural approaches, on the other. 5 It goes with-
out saying that the relevance of integrity for organizations continues to be a
topic of concern, both in scholarship and in practice. 6 Overcoming any
conceptual deficits in prior publications on integrity may, in some contexts,
require further insightful conceptualization and operationalization of the
concept of integrity. Multiple avenues for future research can be envisaged.
This book will provide a source of inspiration for further conceptual work
and theoretically driven yet empirically grounded research. There are risks
when lawyers start defining or making distinctions with regard to the integ-
rity standard – which is not a norm of prohibition, but a norm or standard
of positive personal conduct – which is why this book includes a contextual
Part I and avoids premature conceptual definitions.
As described in Section 2 below, this book emphasises individual in-
tegrity in international justice, but it does not exclude considerations of in-
stitutional integrity. It is neither ‘individual-centric’ nor ‘institution-centric’.
Rather, it invites a holistic approach, based on an accurate understanding of
real integrity challenges in international justice, as well as proper command
of the relevant ethics frameworks of international courts and tribunals. We
have deliberately sought to avoid imposing a rigid frame on the contribu-
tors, not to stifle the discourse and to showcase the multiple understandings
and perspectives when the literature on integrity in international justice is
so scarce. The anthology features perceptive and incisive readings, includ-
ing at times conceptually astute, while always practice-oriented reflections
on integrity in international justice in a forward-looking manner.
3
See multi-disciplinary literature review surveying seven disciplines (public administration,
organizational science, sociology, political science, law, philosophy and international rela-
tions): Thomas Robinson, Lucinda Cadzow and Nikolas Kirby, “Investigating Integrity: A
Multi-Disciplinary Literature Review”, Oxford University Working Paper, May 2018.
4
See also Andrew Stark, “Public Integrity (Book Review)”, American Political Science Re-
view, 2001, vol. 95, no. 1, pp. 203-4.
5
James G. March and Johan P. Olsen, Rediscovering Institutions: The Organizational Basis of
Politics, The Free Press, New York, 1989.
6
See, for example, Peter Verheezen, “The (Ir)relevance of Integrity in Organizations”, Public
Integrity, 2008, vol. 10, no. 2, pp. 133-49.

The response has exceeded our expectations, with an outburst of in-

terest in the Integrity Project, and an inspiring energy among the carefully
selected authors in their drafting of the 32 chapters that follow this intro-
ductory chapter. Taken together, the chapters offer a structured multitude of
perspectives on integrity in international justice, all recognizing that the
integrity standard is legally binding within international courts and tribu-
nals. Almost all the chapters draw on and are grounded in practice as they
present and scrutinize proposals, venues, mechanisms, recommendations
and suggestions to address integrity and its potential gaps and implementa-
tion challenges in international justice.
Their introspection of how institutions operate, their values and pur-
poses, manifests a desire to contribute to the consolidation of the interna-
tional legal order, as we face an environment of increased scrutiny of inter-
national justice organizations.
1. Multilateralism Under Pressure, Increased Scrutiny of Integrity in
International Justice 7
In a ceremony in Rome on Saturday 18 July 1998, then United Nations
Secretary-General Kofi Annan proclaimed the establishment of the ICC, a
“gift of hope to future generations, and a giant step forward in the march
towards universal human rights and the rule of law”. 8 This was a widely
shared sentiment among the diplomats assembled in the Hall of the Horatii
and Curiatii on Capitol and among international lawyers around the world.
Twenty-two years later, there have been several changes in international
relations with implications for international organizations, not excluding
the United Nations (‘UN’) and the ICC. It has become apparent that multi-
lateralism is under growing pressure, and that this may, among other things,
increase the scrutiny of the operation of international organizations, includ-
ing international courts.
7
Given the conceptual continuum described above, Sections 1 through 8 below deliberately
draw on elements of the Integrity Project concept paper, see Morten Bergsmo, “Revisiting
Integrity in International Justice”, FICHL Policy Brief Series No. 93 (2018), Torkel Opsahl
Academic EPublisher (‘TOAEP’), Brussels, 2018 (http://www.toaep.org/pbs-pdf/93-
bergsmo/). We are pleased that more than 40 authors have agreed to contribute within this
conceptual framework, the objective of which is to stimulate a discourse on integrity in in-
ternational justice, eventually growing into a sub-discipline of ethics of international justice.
8
Statement by the United Nations Secretary-General Kofi Annan at the Ceremony Held at
Campidoglio Celebrating the Adoption of the Statute of the International Criminal Court, 18
July 1998 (http://www.legal-tools.org/doc/8b0ab6/).

China, India, Russia and the United States (‘US’) are all standing
outside the ICC, watching attentively its every move, noting any weakness
that could serve their perceived future interests. 9 Anne-Marie Slaughter
claims that some of these leaders “support a return to an era of unfettered
state sovereignty. They would dismantle international and supranational
organizations of all kinds and return to multipolar ‘Great Power’ politics, in
which alliances shift and are transactional”. 10 While time may or may not
verify Slaughter’s fear, on 10 September 2018, just a few weeks after her
article was published in the Financial Times, US Ambassador John Bolton
delivered
a clear and unambiguous message on behalf of the President
of the United States. The United States will use any means
necessary to protect our citizens and those of our allies from
unjust prosecution by this illegitimate court. We will not co-
operate with the ICC. We will provide no assistance to the
ICC. We will not join the ICC. We will let the ICC die on its
own. After all, for all intents and purposes, the ICC is already
dead to us. […] We will respond against the ICC and its per-
sonnel to the extent permitted by U.S. law. We will ban its
judges and prosecutors from entering the United States. We
will sanction their funds in the U.S. financial system, and, we
will prosecute them in the U.S. criminal system. We will do
the same for any company or state that assists an ICC investi-
gation of Americans. 11
Bolton continued:
The ICC’s Assembly of States Parties cannot supervise the
Court any more than the United Nations General Assembly
can supervise the UN bureaucracy. Recent allegations of mis-
management and corruption among ICC personnel make this
perfectly clear. The first Prosecutor elected by the Assembly
9
This risk was flagged in the policy brief published on 6 August 2018 articulating the concep-
tual basis of the Integrity Project, see Morten Bergsmo, “Revisiting Integrity in International
Justice”, supra note 7.
10
See Anne-Marie Slaughter, “Donald Trump and Vladimir Putin want to create a new world
order: We should take their vision of unfettered state sovereignty seriously”, in Financial
Times, 22 July 2018. She warns in the same article that it is “incumbent upon those of us
who see an arc of progress bending towards peace and universal human rights to appreciate
the full scope of the threat posed to our 20th-century global architecture”.
11
United States, Ambassador John Bolton, Statement, Federalist Society, 10 September 2018
(https://www.legal-tools.org/doc/84c2b4/).

of States Parties attempted to protect a high-ranking govern-

ment official from prosecution, assisted a businessman with
links to violations in Libya, and shared confidential court
documents with Angelina Jolie. 12
On 15 March 2019, US Secretary of State Michael R. Pompeo an-
nounced “a policy of U.S. visa restrictions on those individuals directly
responsible for any ICC investigation of U.S. personnel. This includes per-
sons who take or have taken action to request or further such an investiga-
tion”. 13 On 11 June 2020, US President Donald J. Trump issued an Execu-
tive Order declaring a “national emergency to deal with the threat” of “at-
tempt[s] by the ICC to investigate, arrest, detain, or prosecute any United
States personnel without the consent of the United States, or of personnel
of countries that are United States allies and who are not parties to the
Rome Statute or have not otherwise consented to ICC jurisdiction”. 14 In a
statement shortly thereafter, US Attorney General William Barr remarked
that the “U.S. Government has reason to doubt the honesty of the ICC. The
Department of Justice has received substantial, credible information that
raises serious concerns about a long history of financial corruption and
malfeasance at the highest levels of the office of the prosecutor”. 15 At the
same press briefing, Pompeo referred to the ICC as “grossly ineffective and
corrupt”, adding that its “record of botched prosecutions and poor judg-
ment casts grave doubt on the court’s ability to function at the most basic
level and demonstrates the highly politicized nature of this institution”. 16
US National Security Adviser Robert O’Brien added that, “[d]espite re-
peated calls for reform from our allies in the United Kingdom, Japan, Ger-
many, and other countries, the court is ineffective, unaccountable, and is a
politically motivated bureaucracy”, and that “we know that there is corrup-
tion and misconduct at the highest levels of the ICC and in the office of the
12
Ibid. (italics added).
13
United States, Department of State, Remarks to the Press, Michael R. Pompeo, Secretary of
State, 15 March 2019 (https://www.legal-tools.org/doc/cifgr1/).
14
United States, President Donald J. Trump, Executive Order on Blocking Property of Certain
Persons Associated With The International Criminal Court, E.O. 13928 (https://www.legal-
tools.org/doc/dfkvpn/).
15
United States, Department of State, “Secretary Michael R. Pompeo at a Press Availability
with Secretary of Defense Mark Esper, Attorney General William Barr, and National Securi-
ty Advisor Robert O’Brien”, Remarks to the Press, William Barr, US Attorney General, 11
June 2020 (italics added) (https://www.legal-tools.org/doc/h4dsqa/).
16

prosecutor”, referring to the Court as a “corrupt international organiza-

tion”. 17
On 2 September 2020, the US government imposed economic sanc-
tions pursuant to Executive Order 13928 on the ICC Prosecutor Fatou Ben-
souda “for having directly engaged in an effort to investigate U.S. person-
nel” and Phakiso Mochochoko (Head of the Jurisdiction, Complementarity
and Cooperation Division of her Office) “for having materially assisted
Prosecutor Bensouda”. Secretary of State Pompeo warned that “[i]ndivi-
duals and entities that continue to support Prosecutor Bensouda and Mr.
Mochochoko materially risk exposure to sanctions”. 18
It is a source of grave concern that such a relationship has evolved
between the ICC and the US government, which has caused numerous
strong reactions by many states, academia and civil society, in addition to
the ICC itself. The President of the Bureau of the ICC Assembly of States
Parties, O-Gon Kwon from Korea, issued a concise statement the very
same day, saying: “I strongly reject such unprecedented and unacceptable
measures against a treaty-based international organization. They only serve
to weaken our common endeavor to fight impunity for mass atrocities”. 19
Grave concern has been expressed regarding the “unusual and extraordi-
nary assault on international justice” as the US President “has chosen in-
timidation of officials as a form of confrontation with the court”. 20 On 2
November 2020, a joint statement on behalf of 72 ICC States Parties reiter-
ated their
commitment to uphold and defend the principles and values
enshrined in the Rome Statute and to preserve its integrity and
independence undeterred by any measures or threats against
the Court, its officials and those cooperating with it. We note
that sanctions are a tool to be used against those responsible
for the most serious crimes, not against those seeking justice.
17
18
United States, Department of State, “Actions to Protect U.S. Personnel from Illegitimate
Investigation by the International Criminal Court”, Remarks to the Press, Michael R. Pom-
peo, Secretary of State, 2 September 2020 (applies to all three quotations in the paragraph)
(https://www.legal-tools.org/doc/2hljlk/).
19
See also ICC, President of the Bureau of the Assembly of States Parties, “ASP President,
O-Gon Kwon, rejects US measures against ICC”, Press release, 2 September 2020
(https://www.legal-tools.org/doc/xaduvf/).
20
Claus Kress, “Editorial: An Unusual and Extraordinary Assault on International Justice”,
Journal of International Criminal Justice, 2020.

Any attempt to undermine the independence of the Court

should not be tolerated. 21
Ever since US President George W. Bush signed the American Ser-
vice-Members’ Protection Act into law on 2 August 2002 22 – often referred
to as ‘The Hague Invasion Act’ – it has been eminently predictable that the
US government will not only be watching the ICC closely (chronicling
every error that the Court makes and every allegation levelled against it),
but also take action against the Court if it pursues suspects who are US cit-
izens. This risk was being considered by those serving the preparatory team
of the ICC Office of the Prosecutor in 2002-03. That is why the team in-
vested so much work on the Draft Regulations of the Office, 23 including a
carefully considered Code of Conduct, 24 to ensure that the Office and the
Court would not unnecessarily feed its powerful detractors. Indeed, US At-
torney General Barr confirmed on 11 June 2020 that they have “infor-
mation going back many years about multiple matters”, and that the “De-
partment of Justice, together with partners across the United States Gov-
ernment, is investigating, and we are committed to uncovering and if pos-
sible holding people accountable for their wrongdoing – any wrongdoing –
that we may find”. 25
International law is paramount for effective multilateralism and
strong international organizations and courts and tribunals. 26 At this stage,
21
United Nations General Assembly, “Adopting Draft Upholding International Criminal
Court’s Goal to End Impunity, Calls for Cooperation in Arresting Fugitives”, Statement by
Christoph Heusgen (Germany), seventy-fifth session, 2 November 2020, Meetings Coverage
no. GA/12280. The full statement is available on the web site of the Permanent Mission of
the Federal Republic of Germany to the United Nations.
22
United States, The American Service-Members’ Protection Act (ASPA), Title 2 of Pub.L.
107–206, H.R. 4775, 116 Stat. 820, enacted 2 August 2002 (https://www.legal-tools.org/doc/
9e61d9/).
23
See Carlos Vasconcelos, “Draft Regulations of the Office of the Prosecutor”, in Morten
Bergsmo, Klaus Rackwitz and SONG Tianying (eds.), Historical Origins of International
Criminal Law: Volume 5, TOAEP, Brussels, 2017, pp. 834–93 (https://www.legal-tools.org/
doc/09c8b8/).
24
See Salim A. Nakhjavani, “The Origins and Development of the Code of Conduct”, in ibid.,
pp. 964–77. See also Suhail Mohammed and Salim A. Nakhjavani, “Does the International
Criminal Court Really Need an Ethics Charter?”, Chapter 22 below.
25
Supra note 15.
26
See the conference “UN at 75: Effective Multilateralism and International Law” organized
by the UN Office of Legal Affairs and the Federal Foreign Office of Germany, 9 October
2020 (https://www.un75-berlin-international-law-conference.de).

it cannot be ruled out that the situation will get worse for the ICC and the
ICC system, and that other states will articulate positions similar to those of
the US government. We cannot take the achievements in multilateralism
during the past century for granted. It is not so long ago that Dag Hammar-
skjöld cited Nikita Khrushchev’s statement that “while there are neutral
countries, there are no neutral men”, and lamented that were this view of
the international civil servant to be proven true, “we would be thrown back
to 1919”. 27 We have no guarantee that one or more of the great powers will
not, at one stage, take a similarly dim view of international civil service,
also of international justice.
2. Conceptual Structure and Direction
However uncomfortable at times, an environment of increased scrutiny al-
so provides a welcome opportunity to revisit the role of the individual in
international justice institutions, not only the institutions and their systemic
context. This is what the Integrity Project and this book seek to do. They do
so in a forward-looking manner with a view to contributing towards pro-
gress, while cognizant of the saying that, “[t]hough talk about ethics is
cheap, silence about ethics is far too expensive”. 28 When serious integrity
problems within international courts become manifest, they tend to affect
the external reputation of and support for the institution, and erode morale
among staff. We have also seen that high-maintenance integrity problems
can lead to shifts in work priorities within the agency concerned (in at-
tempts to cover up or distract attention), thus undermining internal quality-
control mechanisms. 29 Quite apart from such crisis-management after the
damage is done, focusing on the standard and practice of integrity is an
open-ended necessity for international justice institutions, none of which is
exempted from the common challenge of professionalisation. All interna-
tional justice institutions face vicissitudes from time-to-time, as the policies
27
See Dag Hammarskjöld, “The International Civil Servant in Law and Fact: Lecture deliv-
ered to Congregation at Oxford University, 30 May 1961”, in Wilder Foote (ed.): The Serv-
ant of Peace: A Selection of the Speeches and Statements of Dag Hammarskjöld, Secretary-
General of the United Nations, 1953-1961, The Bodley Head, 1962, p. 329 (http://www.
legal-tools.org/doc/64bcae/).
28
See Deborah L. Rhode and David Luban, Legal Ethics, Fifth Edition, Foundation Press,
New York, 2009, p. 1074.
29
See the emphasis on consistency of investigation planning in Xabier Agirre Aranburu,
Morten Bergsmo, Simon De Smet and Carsten Stahn (eds.), Quality Control in Criminal In-
vestigation, TOAEP, Brussels, 2020.

of States Parties are dynamic and do not always evolve along rational lines.
The institutions require vigilance in their defence. Erosion of the ‘high
moral character’ standard indicates lack of progress as much as an ap-
proach of rigid moralism does. Both can undermine our mindful ability to
balance moral concern with a sensitivity to complex situational differences
and dilemmas.
One of the main points made by the important 1944 report “The In-
ternational Secretariat of the Future: Lessons from Experience by a Group
of Former Officials of the League of Nations” was that no “attribute is
more essential for an international secretariat than ability to gain and hold
the confidence of member Governments and of public opinion”. 30 As Hans
Corell has highlighted, “international judges are operating under the eyes
of the whole world, and the impression they give and the way in which
they perform their work will directly reflect on the standing of the institu-
tion that they serve”. 31 For this reason, he argues that “the standards that
international judges must uphold must be set even higher than at the na-
tional level”, 32 while it should be recognized, he would agree, that “judges
must first and foremost apply the law and not use it to pursue their own
ethical agendas”. 33
Against this background, this book has been conceived as a contribu-
tion towards the crystallisation of a sub-discipline of ethics of international
justice. This is ambitious, but it also reflects that ethics of law is taught as a
subject at the domestic level in several countries, in particular in the US.
The textbook by Deborah L. Rhode and David Luban 34 is an example of a
broadly-based approach at the national level. Alexander Heinze and Shan-
non Fyfe 35 have called for a more systematic approach to ethics in interna-
tional criminal justice, as do several authors in this anthology.
30
See “The International Secretariat of the Future: Lessons from Experience by a Group of
Former Officials of the League of Nations”, Royal Institute of International Affairs, London,
March 1944, p. 17 (http://www.legal-tools.org/doc/53ecbb/).
31
Hans Corell, “Ethical Dimensions of International Jurisprudence and Adjudication”, 10 June
2002, p. 6 (an excerpt from the report of the 2002 Brandeis Institute for International Judges)
(http://www.legal-tools.org/doc/5eb7d4/).
32
Ibid.
33
See “The Judiciary as a New Moral Authority?”, p. 3 (an excerpt from the report of the 2006
Brandeis Institute for International Judges) (http://www.legal-tools.org/doc/ad4d13/).
34
See Deborah L. Rhode and David Luban, Legal Ethics, supra note 28.
35
See Alexander Heinze and Shannon Fyfe, “Prosecutorial Ethics and Preliminary Examina-
tions at the ICC”, in Morten Bergsmo and Carsten Stahn (eds.), Quality Control in Prelimi-

This book, as well as the wider project, takes a comprehensive ap-

proach. It was decided not to restrict the theme to what international courts
can themselves do to enhance integrity. The project was organized in six
parts: Part I: Meaning of Integrity, Part II: Awareness and Culture of Integ-
rity, Part III: Role of International Organizations and States, Part IV: Role
of International Courts, Part V: Integrity and the Lens of Cases, and Part VI:
Independence and Integrity.
Part I (“Meaning of Integrity”) seeks to give a wider philosophical,
religious, historical and comparative context to an enhanced understanding
of the concept or standard of ‘integrity’. For the purposes of the Integrity
Project, ‘integrity’ is nevertheless understood as a legally binding, statutory
term of international law. The project does not see integrity in international
justice as a mere value judgment or moral term. The main focus is on indi-
vidual integrity in international justice, less so on the institutional integrity
of international courts, although one affects the other and several authors
address institutional integrity in the subsequent chapters.
The intention behind Part II (“Awareness and Culture of Integrity”)
has been to consider some factors that may contribute towards a culture of
integrity taking hold within international courts, such as frankness, decency,
leadership and outstanding ability. For Part II we have invited discussions
on negative and sometimes veiled dynamics such as group-thinking, collu-
sion, and paralysis of will – also among relevant representatives of states
and non-governmental organizations – as well as instrumentalisation and
the stealth psychology of indebtedness. Awareness depends on understand-
ing of the meaning of the integrity standard, and nourishing a culture of
integrity depends on awareness. This is how Parts I and II relate to each
other. Both exceed the traditional scope of discussions of integrity in inter-
national justice contexts. Both widen the discourse in the interest of gener-
ating fresh ideas, engaging new talent in the discussion, and facilitating
broad representation and ownership in the discourse.
Parts III (“Role of International Organizations and States”) and IV
(“Role of International Courts”) take the conventional approach, asking
which measures international courts, their States Parties, and other interna-
tional organizations can take to foster individual integrity and cultures of
integrity in international justice. This approach may be seen as the habitual
nary Examination: Volume 2, TOAEP, Brussels, 2018, pp. 1-75 (http://www.toaep.org/ps-

pdf/33-bergsmo-stahn).

element of lawyers, however it seems crucial to be properly informed of

real challenges and understand clearly the wider importance of the institu-
tions. The greatest risk to integrity in international justice may well be
omissions by States Parties in treating integrity as a legally binding re-
quirement in the election of high officials. Those who may suffer direct
consequences of such failures are the successors to the high official in
question, the organizational culture, the defenders of the court, and victims.
Part V (“Integrity and the Lens of Cases”) considers how concrete
court cases identify integrity challenges. This can be seen as the water in
which lawyers swim, and it is the engine-room of subsumption of facts –
real or hypothetical – under the integrity standard. However, the case-
approach is at this stage of the discourse on integrity in international justice
necessarily selective, and it cannot alone give the overview necessary to
construct a wider typology of risks and reform options.
Finally, Part VI (“Independence and Integrity”) analyses the tension
between the independence of international justice and the integrity of its
members and, in some of the chapters, the international justice institutions.
There is often a tension between the principles of independence and integ-
rity. This is one of the hotspots of ‘integrity stress’, but also where efforts
to conceal threats may be most accomplished. It is an area where actors
around international justice institutions may be most deserving of scrutiny
and guidance.
When presenting this conceptual structure of the Integrity Project at
the international conference in the Peace Palace in The Hague on 1 De-
cember 2018, Morten Bergsmo, co-editor of this volume, observed that the
project seeks to be “forward-looking”, but that this should not be under-
stood “as a limitation on speech” and that we “should certainly not try to
belittle problems which persist and which undermine international jus-
tice”: 36
Indeed, there are real reasons for why we are gathered here,
above and beyond theoretical interest in a normative standard
of ‘integrity’. We are not here to conceal or apologize. […]
We are here to develop our awareness and understanding
further, to add strength and perspective to an emerging dis-
36
Morten Bergsmo, “Integrity as Safeguard Against the Vicissitudes of Common Justice Insti-
tutions”, CILRAP Film, The Hague, 1 December 2018 (https://www.cilrap.org/cilrap-
film/181201-bergsmo/).

course on ‘integrity’, and to see whether we can identify

measures of improvement through inclusive consultation and
communitarian scholarship.
‘Integrity’ is a challenge in all justice – in all public ad-
ministration for that matter. It should not be seen as a threaten-
ing subject. Let us de-sensitise the subject, while not relativiz-
ing its importance. 37
He offered a visualisation of the conceptual or cognitive structure of
the Integrity Project shown as Figure 1, on which this book is also based.
Part II:
Awareness and Culture of Integrity
Organizations and States
Role of International
International Courts
Part IV:
Part III:
Role of
Part V: Part VI:
Integrity and Independence
the Lens of Cases and Integrity
Part I:
Meaning of Integrity
Figure 1: Visualisation of the conceptual structure of the book.
3. Meaning of ‘Integrity’
In international justice, the term ‘integrity’ is often used in connection with
the expression ‘high moral character’. In the ICC Statute, for example, Ar-
ticle 36(3)(a) mentions both standards, whereas Article 42(3) only men-
tions ‘high moral character’. Thus, for the purposes of the Integrity Project
both are considered legal terms. At the same time, ‘integrity’ is used as
37
Ibid.

“one of the most important and oft-cited of virtue terms”, referring to “a

quality of a person’s character”, used “virtually synonymously with ‘mor-
al’”, righteous, conscientious or with rectitude. 38
The UN International Civil Service Advisory Board observed in an
influential 1954 report that ‘integrity’ must be judged “on the basis of the
total behaviour of the person concerned. Such elementary personal or pri-
vate qualities as honesty, truthfulness, fidelity, probity and freedom from
corrupting influences, are clearly included”. 39 Dag Hammarskjöld (the se-
cond UN Secretary-General) equated ‘integrity’ with “conscience” and “re-
spect for law and respect for truth”. 40 In his important monograph The In-
ternational Civil Servant, Jacques Lemoine subsumes “the moral qualities
of dedication, fairness and impartiality […] under the concept of integri-
ty”. 41
The word ‘integrity’ has linguistically evolved from the Latin adjec-
tive ‘integer’, meaning whole or complete. On one narrow and technical
reading, ‘integrity’ could include consistent immoral conduct as long as
conduct and personal principles operate in harmony. This reading is coun-
ter-intuitive to most of us and does not take fairly into account centuries of
use of the term. David Luban has nevertheless made an insightful attempt
to address problems associated with this narrow reading. 42 There are other
narrow, conversational views that subjectivize terms such as ‘integrity’ and
‘virtue’ in manners that may not only appear rigid, but are both dissonant
with how constituencies in China, India and other populous regions actual-
ly think, and incompatible with the legal status of ‘integrity’ in internation-
al courts.
Part I (“Meaning of Integrity”) of the book contains seven chapters.
Chapter 1 by Emiliano J. Buis (“Physically Upright, Morally Sound: Rec-
reating Ancient ‘Integrity’”) commences with reflections on the meaning of
‘integrity’ in Ancient Greece and Rome. Taking an historical and philo-
38
See Stanford Encyclopedia of Philosophy, 9 July 2018 (https://plato.stanford.edu/entries/
integrity/).
39
See “Report on Standards of Conduct in the International Civil Service”, 8 October 1954
(http://www.legal-tools.org/doc/d94c61/).
40
ered to Congregation at Oxford University, 30 May 1961”, supra note 27, p. 348.
41
See Jacques Lemoine, The International Civil Servant: An Endangered Species, Kluwer
Law International, The Hague, 1995, p. 257.
42
See Chapter 8 of his Legal Ethics and Human Dignity, Cambridge University Press, 2007.

sophical approach to integrity, Buis highlights the value of understanding

the ethical principles underlying modern conceptions, in order to uphold
them properly. Seeking the origins of ‘integrity’ to recreate the concept of
‘integrity’ in Classical Athens and Republican Rome, he illustrates, inter
alia, the connection between an individual’s physical features and moral
characteristics, and its importance as an efficient rhetorical technique for
integrity and justice. Integrity is thus associated with uprightness, straight
bodies and honest conduct, as the antithesis to what is twisted or crooked.
Although modern notions of ‘integrity’ do not have a physical equivalent
and are often based on Christianity, the civic use of physical metaphors of
rectitude and corruption remains. Buis concludes that the understanding of
Classical values is therefore essential and a Classical debt.
Based on early Christian sources, Chapter 2 by Judge Hanne Sophie
Greve (“Integer Vitae: Christian Sources and Reflections on Integrity in
Justice”) presents religious and philosophical reflections on the notion of
‘integrity’ in justice. Hanne Sophie Greve draws on Quintus Horatius Flac-
cus’ poem Integer Vitae to define integer as “a person not lacking in any
capacity needed for moral or ethical behaviour in providing justice”. From
this definition, Greve addresses ethical and moral concepts such as human
faculties and their controlling powers, the cardinal virtues (including pru-
dence, justice, temperance and fortitude), and the three theological virtues
(faith, hope and charity). She concludes that justice is crucial for society
and, as such, the role of integrity is paramount as it materializes in relation
to the Other through hope and charity.
In Chapter 3 (“Sharí‘ah Sources and Reflections on Integrity”),
Judge Adel Maged provides reflections on early Sharí‘ah sources and the
notion of ‘integrity’ in justice. It explores the influence of Islam on the le-
gal system and the judicial function. It examines Sharí‘ah sources and their
provisions on judicial ethics, which place integrity as the core legal re-
quirement for serving as a judge. In doing so, the chapter refers to Adab Al-
Aāḍī, a compendium of early-classical Islamic jurisprudential literature. It
further provides an overview of the importance of justice, judicial integrity
and the judiciary in Sharí‘ah. Maged introduces Sharí‘ah concepts in rela-
tion to the Western notion of judicial ‘integrity’, in an effort to contribute to
the consolidation of the concept in the international justice system.
In Chapter 4 (“Sir Thomas More and Integrity in Justice”), Gunnar
Ekeløve-Slydal develops a detailed analysis of Sir Thomas More and the
notion of ‘integrity’, exploring what we can learn from his teachings in

terms of principles and strategies to strengthen individual and institutional

integrity. Being aware of its Classical and Biblical roots, More was among
the first to use the English word ‘integrity’ as consistency in thought, word
and action. Thus, Ekeløve-Slydal suggests that we should take More’s con-
cept of ‘integrity’ into account when facing current integrity challenges. He
then addresses integrity failures in some inter-governmental organizations
and analyses them in relation to a typology of integrity issues: politiciza-
tion, instrumentalization of institutions, and professional integrity. More’s
integrity lessons relate to professional integrity being characterized by crit-
ical and creative reasoning to engage with conflicting demands of profes-
sional practice. He concludes that upholding professional integrity in inter-
national justice requires conforming to the promises and aims of justice.
In Chapter 5 (“The Dag Hammarskjöld Legacy and Integrity in In-
ternational Civil Service”), Ambassador Hans Corell provides a penetrating
account of Dag Hammarskjöld’s legacy and integrity in international civil
service. Drawing on Hammarskjöld’s lectures and the book Markings
(which he prefers to call Waymarks in English), Corell discusses Hammar-
skjöld’s statements on the UN and the ambiguity of the concept of ‘neutral-
ity’. He analyses how, following Hammarskjöld’s guidance, integrity is ul-
timately an issue of conscience, and the international civil servant needs to
be fully aware of human reactions, to keep them in check, so they do not
interfere with decisions. He emphasizes that the standards at the interna-
tional level should be higher than those at the national level, and the rele-
vancy of accountability. Corell concludes by reminding us of the im-
portance of forcing problems that confront us into a clearly conceived intel-
lectual form and acting accordingly, based on a quotation by Hammar-
skjöld.
In Chapter 6 (“Multicultural Understanding of Integrity in Interna-
tional Criminal Justice”), Juan Carlos Botero Navia seeks to develop some
reflections on a multicultural understanding of ‘integrity’, with a focus on
perspectives from the Global South. Botero examines whether the 2000
Bangalore Principles of Judicial Conduct, considered an important interna-
tional standard on judicial integrity and independence, are truly universally
accepted. In his understanding, international criminal justice overwhelm-
ingly focuses on Western and elitist notions of justice, emphasizing pun-
ishment, retribution and deterrence, while excluding other forms of cus-
tomary justice. He argues that this is also reflected in the Western concept
of judicial integrity, which incorporates impartiality and a strict application

of the law, but disregards the Global South’s ideal of justice with its em-
phasis on restoration and community harmony (he develops an ‘African
Tree’ consideration). He concludes that the legitimacy of international
criminal tribunals, particularly the ICC, could be enhanced in the Global
South by an interpretation of international criminal justice beyond what he
sees as predominantly Western perspectives.
Shannon Fyfe explores theoretical approaches to the concept of ‘in-
tegrity’ in Chapter 7 (“Ethics, Integrity and the Bemba Acquittal”). She
dwells on the ICC Appeals Chamber’s decision in the Bemba case and the
Prosecutor’s reaction thereto. Fyfe argues that this decision reflects that an
institution must not only follow integrity standards, but it should also ap-
pear to be doing so. The chapter presents an overview of integrity as identi-
ty, as wholeness and integration, and as standing for something, concluding
that the integrity of the ICC goes beyond its Prosecutor. She observes that
the individual ethical obligation of prosecutors can be understood in deon-
tological and consequentialist terms. Fyfe presents an incisive reflection on
the institutional integrity of the judiciary based on an analysis of judicial
ethics and individual integrity. She contributes normative tools to under-
stand the relationship between institutions and individuals in international
criminal law through the lens of integrity.
4. Awareness and Culture of Integrity
At the individual level, it is necessary to ask whether international civil
servants and high officials in international courts have sufficient awareness
or understanding of what ‘integrity’ and ‘high moral character’ refer to. It is
problematic if these legal terms are largely seen as slogans or empty shells
to which everyone is free to give equally valid content as may be conven-
ient. The terms require interpretation according to the same methodology
that applies to other binding language in the statute of the international
court in question, even if there is relative scarcity of relevant international
law sources.
In his biography on Dag Hammarskjöld, Brian Urquhart explains
how Hammarskjöld left a personal impression on most of the people who
dealt with him. He highlights Hammarskjöld’s “integrity, disinterestedness
and purity of intention”, 43 while never questioning his practical judgment
in matters of government, politics or international civil service. Hammar-
43
See Brian Urquhart, Hammarskjold, Harper & Row, New York, 1972, p. 33.

skjöld saw service as “self-oblivion”, as striving towards “an unhesitant

fulfilment of duty”. 44 How is this relevant to the integrity standard? Is
Hammarskjöld’s legacy as a standard-bearer for civil servants and high of-
ficials in international courts relevant to how we nourish cultures of integri-
ty in international courts? 45 For example, is there a requirement of ‘intel-
lectual integrity’ for high officials and international civil servants in inter-
national courts? If prolific use of separate opinions affects the standing of
an international court, could the practice bear on integrity?
These were among the more novel questions that had been formulat-
ed for the contributors to Part II of the anthology (“Awareness and Culture
of Integrity”). ‘Conflict of interest’ is the most common arena for discus-
sion of integrity in the preparation and adjudication of cases before interna-
tional courts. This issue has received considerable attention already. 46 But
while it may be decisive for the reputation of individual lawyers, it rarely
has that effect on the institutions themselves. This and other ‘integrity’
challenges in operations – such as self-interest in recruitment, remuneration
and privileges, loyalty in external activities, and propriety during mis-
sions – are also relevant here.
Part II of this anthology contains five chapters. In Chapter 8 (“Con-
formity, Leadership and the Culture of Integrity at the International Crimi-
nal Court”), Brigid Inder OBE examines integrity concerns with respect to
the ICC, while assessing the concepts of conformity, leadership and culture
of integrity. The chapter begins with an introduction to the institutional
framework of the ICC, identifying as a weakness the area of prohibited
conduct, including sexual and other forms of gender-based violence com-
mitted in the workplace. She interprets it as stemming from factors such as
44
Quoted in W.H. Auden, “Foreword”, in Dag Hammarskjöld, Markings, Ballantine Books,
New York, 1983, p. vii. Fair-minded readers of Markings can hardly perceive Hammarskjöld
as naïve – he was obviously not a Brand-like character (as in the uncompromising figure in
Henrik Ibsen’s celebrated play Brand from 1866).
45
Ever since the establishment of the Secretariat of the League of Nations and the Internation-
al Labour Office in 1920, the international civil service’s performance as regards “independ-
ence from any authority external to the organization, and the highest standards of efficiency,
competence and integrity” has been “fragile and […] repeatedly called into question” (Mar-
cel A. Boisard, “Preface”, in Lemoine, supra note 41, pp. v-vi). Boisard maintains that the
preservation of these requisites “implies a continuing struggle” (ibid.).
46
Brandeis University’s International Center for Ethics, Justice and Public Life has produced
several short reports on aspects of this problematique, see the collection at https://www.
legal-tools.org?search=cajc9qcu.

indifference to international standards regarding oversight. The chapter ad-

dresses the ethical challenges present at the ICC, including misconduct by
individual staff or high officials, failures of internal oversight mechanisms,
and limited infrastructure to support and ensure the Court’s institutional
integrity. She presents Registry’s restructuring project ‘ReVision’ as a fac-
tual case of leadership vacuum to illustrate the Court’s ethical challenges.
The author concludes that the ICC is ethically discordant with the princi-
ples that guided its foundations, and calls for States Parties to ensure that
the Court fulfils its mandate and exercises proper leadership.
From a different perspective, William H. Wiley critically assesses the
relationship between leadership, management and integrity in international
criminal investigations in Chapter 9 (“Effective Leadership, Management
and Integrity in International Criminal Investigations”). In searching for
explanations for underperformance by international judicial institutions
since 1993, Wiley addresses what he describes as the insufficient institu-
tional leadership and management of international criminal justice, drawing
a distinction between the two concepts. He highlights the relevance of in-
stitutional loyalty for the success of an international criminal court or tri-
bunal as it fosters an organizational culture that impacts staff performance.
Drawing on his personal experience at the ICTR, ICTY and ICC, Wiley
further chronicles examples of what he considers as successful and unsuc-
cessful incidents of discipline and integrity in these institutions. Conse-
quently, Wiley reflects on the intersection between leadership, professional
integrity, and international criminal investigations, emphasizing the requi-
site harmony between investigators, analysts and counsel for the effective-
ness of the case-building process. He concludes that the principles of effec-
tive leadership and management in international criminal investigations
must be addressed as an essential component to guarantee the prosecutorial
output of the international criminal justice system.
In Chapter 10 (“Decency as a Prerequisite to Integrity in Internation-
al Proceedings”), Andrew T. Cayley CMG QC delves into the concept of
decency as a prerequisite to integrity in international criminal proceedings,
embedded in standards of professional conduct that regulate the relation-
ship between counsel and court as well as between counsel and client. He
underscores how domestic regulations like those of England and Wales re-
quire a positive duty of decency, whereas the ICC expresses this duty in the
negative. Cayley identifies that fundamental principles of decency are
broadly the same in domestic and international jurisdictions, involving a

duty of candour and honesty, in addition to independence, integrity and

good faith. He provides a thoughtful reflection based on his personal expe-
rience at the ICTY, particularly in the cases of Krstić and Šainović et al.,
arguing that decency often requires one to act in a way that is not self-
serving, even when prosecuting in international criminal proceedings. As
such, the chapter concludes with a reference to ‘A Man for All Seasons’
and the courage and strength required to give the Devil the benefit of the
law.
Julija Bogoeva’s Chapter 11 (“Only the Best Should Prosecute and
Judge in International Justice”) starts by surveying some of the challenges
the international community currently faces, arguing that integrity is more
necessary than ever. Regarding the act of judging fellow humans for crimi-
nal conduct, Bogoeva writes that it requires the highest integrity. Based on
her experience at the ICTY and a 2018 Oxford study, she proposes that in-
tegrity implies the coherence of individuals and institutions and an ‘ethical
climate’ within the organization. Consequently, she maintains that the im-
punity of the most powerful must end, meaning that the influence of states
should be reduced by promoting a truthful environment in international
criminal justice while also protecting whistle-blowers. The chapter under-
scores that integrity is key to international justice.
The role of aesthetics in furthering a culture of integrity in interna-
tional criminal justice is examined by Marina Aksenova in Chapter 12
(“The Role of Aesthetics in Furthering Integrity”). Aksenova suggests that
enhancing international justice through alternative means has a direct im-
pact on the integrity of its actors, arguing that those involved in the process
must embrace the values promoted. Consequently, she writes that integrity
is bolstered by the connection between inner guidance and outer norms,
which is fostered by aesthetics. Relying on natural law theory and theoreti-
cal frameworks such as the “visual methodology in the age of digital ba-
roque”, Aksenova notes that art allows for law to be contextualized. This
relation provides for a further connection between ethics and aesthetics,
which can be translated into specific ways to engage with art in the field of
international justice. As such, the chapter seeks to illustrate how interna-
tional criminal proceedings can be seen as ritualistic performances and how
art can contribute to reparations at the ICC.

5. Role of International Organizations and States

Establishing an international court takes years of preparations and negotia-
tions by states – if not decades, as we have seen with the ICC – to agree
and adopt a statute and wider legal infrastructure. Securing near consensus
on a statute negotiated by more than 150 states is a monumental undertak-
ing, as illustrated by the Rome Diplomatic Conference on the ICC in 1998
and the two preceding years of intense discussions. When the statute finally
enters into force, the process to establish and build the actual organization
of the court starts. States Parties must then agree on the financing of the
court, its buildings, staff, case flow, and other operational needs. This re-
quires a further continuous investment by governments.
In contrast to the making of the law and organizational framework,
the attention given to who should lead these institutions can sometimes
seem surprisingly lacklustre. It is almost as if some government representa-
tives see their job as done when the legal instruments and institutional
structures are in place. This is a particular risk for positions such as prose-
cutor or deputy prosecutor of international criminal jurisdictions, where we
have normally not seen state-driven campaigning in the same way as for
international judgeships. 47
States Parties are responsible for the election of judges and prosecu-
tors of international courts. This is an important responsibility that requires
vigilance. The high officials of international courts define the culture of
integrity within their institutions. As observed by four long-standing actors
in the field of international criminal justice: “we should recognize that an
international court will not be better than the integrity of its leaders”. 48 Do
states take this responsibility seriously enough? If not, what can be done to
help improve their performance? Should more be done to expose the pur-
suit of national interests and deal-making when that reduces the emphasis
placed on ‘integrity’ in the election of high officials of international courts?
Should there be more attention on the conduct of state officials with portfo-
47
This is elaborated by Morten Bergsmo in his chapter “Institutional History, Behaviour and
Development”, in Morten Bergsmo, Klaus Rackwitz and SONG Tianying (eds.): Historical
Origins of International Criminal Law: Volume 5, TOAEP, Brussels, 2017, pp. 25-27
(http://www.legal-tools.org/doc/09c8b8/).
48
Morten Bergsmo, Wolfgang Kaleck, Alexander S. Muller and William H. Wiley, “A Prose-
cutor Falls, Time for the Court to Rise”, FICHL Policy Brief Series No. 86 (2017), TOAEP,
Brussels, 2017 (http://www.toaep.org/pbs-pdf/86-four-directors/).

lio-responsibility for an international court when they themselves have a

known ambition to become one its high officials?
In addition to these questions – several of which have been touched
upon by chapters throughout the anthology – Part III (“Role of Internation-
al Organizations and States”) explores efforts within the UN and the Euro-
pean Union to strengthen integrity, including in the area of sexual harass-
ment, as well as perspectives from national inquiries into integrity viola-
tions in public agencies and the responsibilities of states as regards private
international investigations.
In the first of five chapters in Part III, Dieneke de Vos in Chapter 13
(“Institutional Ethics, Individual Integrity, and Sexual Harassment: Recent
Developments in Ethics Standard-Setting and Mechanisms at the United
Nations”) emphasizes the role of institutional ethics, claiming that individ-
ual integrity and institutional integrity must be understood jointly since the
latter will ultimately shape the former. De Vos explores the linkage be-
tween the institution and the individual by examining the UN ethics infra-
structure. In setting out this regulatory framework, she notes the signifi-
cance of independence, impartiality and incorruptibility in defining integri-
ty. However, although the UN has developed mechanisms to enforce stand-
ards around individual integrity such as the UN Ethics Office, these struc-
tures are only starting to grapple with how to deal with sexual harassment
as an institutional integrity concern. De Vos identifies this as a gap within
the UN’s ethics infrastructure, since such a framework on individual integ-
rity should also address inter-personal conduct. She concludes that while a
value-based ethics infrastructure is required to advance institutional ethics
and individual integrity, accountability for all types of unethical behaviour
is essential.
With a detailed focus on sexual harassment, Matthias Neuner exam-
ines the UN’s efforts to address it in Chapter 14 (“Sexual Harassment”).
Analyzing the history of the definition of sexual harassment, Neuner draws
on both domestic and international developments, from the US adoption of
administrative regulations and judicial recognition of sexual harassment as
unlawful sex discrimination in the 1970s and 1980s, to the 2008 definition
provided by the UN Secretariat. Neuner considers the first UN legal defini-
tion in 1992 as the beginning of a standard-setting phase characterized by
the adoption of administrative instructions and procedures in relation to
sexual harassment by UN organs and sub-agencies. He then considers the
evolution of the definition of sexual harassment, leading to a comprehen-

sive analysis of the case law on sexual harassment, including more than 40
judgments issued by the UN Administrative Tribunal, the UN Dispute Tri-
bunal, and the UN Appeals Tribunal. Neuner concludes that the UN efforts
to investigate and adjudicate cases of sexual harassment are decades-long
and ongoing, pursuing a ‘zero tolerance’ approach to the matter.
In Chapter 15 (“Integrity and the Work of the European Ombuds-
man”), Marta Hirsch-Ziembinska and Vieri Biondi present the role of in-
tegrity in the work and functioning of the European Ombudsman. The
chapter describes how integrity is integral to the right to good administra-
tion as enshrined in Article 41 of the European Charter of Fundamental
Rights, and how it has been implemented by the European Ombudsman in
practice. Hirsch-Ziembinska and Biondi elaborate on the European Om-
budsman’s efforts to ensure transparency and accountability. These efforts
include addressing potential and actual conflicts of interest while being
mindful of the so-called ‘revolving doors’ phenomenon, ensuring the trans-
parency of the expert groups advising the European Commission, and the
maintenance of transparent and well-regulated lobbying. The chapter con-
cludes that the European Ombudsman places respect for integrity near the
concept of good administration, ensuring the integrity of EU institutions in
a reactive and safeguarding manner.
Whistleblowing and its implementation procedures in public institu-
tions are explored by Jan Fougner in Chapter 16 (“On Whistle-Blowing
and Inquiry in Public Institutions”). He argues that whistle-blowing is con-
ducive to eradicating misconduct, as it introduces a culture of transparency
and freedom of expression. Fougner highlights that whistle-blowing proce-
dures and private inquiries as ways to ensuring integrity and fighting mis-
conduct and unethical behaviour also in the judiciary. Implementation of
whistle-blowing procedures and appropriate mechanisms to combat corrup-
tion and violations of professional and ethical standards is, however, essen-
tial to preserve integrity. For Fougner, such implementation seeks to create
conduct of openness and deterrence of wrongdoing, but it will ultimately
depend on the institution’s willingness. He closes by arguing that the ICC
should implement such mechanisms, in order to impede absolute power,
hinder corruption, and re-establish the virtue of integrity.
In Chapter 17 (“Private International Criminal Investigations and In-
tegrity”), Alexander Heinze offers a comprehensive analysis of private in-
ternational criminal investigations and integrity. He examines their previ-
ous occurrences and advantages (such as efficiency and immediacy), and

illegal conduct of private investigators. The chapter carefully evaluates in-

tegrity as both a semantic and philosophical concept from three perspec-
tives – object, subject and context – and analyses the application of the
procedural regime, especially exclusionary rules. Moreover, Heinze con-
siders the different contexts in which private investigations might take
place: inter-investigatory, intra-investigatory, and extra-investigatory. He
concludes that private investigations constitute a double-edged sword, be-
ing both necessary in the fight against impunity and dangerous when in-
volving illegally obtained evidence. Considering this dichotomy, Heinze
suggests that private conduct in international investigatory contexts must
be regulated and guided by integrity, understood as fairness, due process,
natural justice or judicial legitimacy.
6. Role of International Courts
The role of international courts in upholding integrity is as important as
that of States Parties, if not more fundamental. The high officials of these
courts set the tone of integrity for their organization as a whole. Several
institutional, non-political measures are available to raise awareness and
build cultures of integrity within such courts. 49 Part IV of the anthology
concerns these measures.
The conceptualisation of the project raised several questions to guide
the contributors to Part IV. Does, for example, our understanding of integri-
ty-awareness, -reasoning, -intent and -behaviour within these institutions
correspond to the new international environment where several permanent
members of the UN Security Council show strong reservation towards the
ICC and other international courts? 50 Have we overlooked or underestimat-
ed ways in which the administration of international courts can “help to
create an atmosphere which is conducive to the [integrity] of international
49
A statement of the Women’s Initiatives for Gender Justice expressed concern that media
revelations about the first ICC Prosecutor “could be considered emblematic of an underlying
culture within the Court, rather than exceptional to the overall environment”, see “A critical
time for the ICC’s credibility”, 12 October 2017 (http://www.legal-tools.org/doc/e2fbc7/)
(italics added). It observed that this “is an important moment for the ICC’s evolution as a
permanent court built for longevity, worthy of public trust and focused on the ethical fulfil-
ment of its mandate”.
50
This paraphrases Deborah L. Rhode, “Where is the Leadership in Moral Leadership?”, in
idem (ed.), Moral Leadership: The Theory and Practice of Power, Judgment, and Policy,
John Wiley & Sons, San Francisco, 2006, pp. 22-33.

officials”? 51 Are the existing statutory requirements of ‘integrity’ or ‘high

moral character’ adequate or should there be stronger language to empha-
sise their legally binding nature, to dispel any doubts that may exist? Do
the codes of conduct in international courts work or should they be devel-
oped further? Should a model code of conduct or ethics charter for interna-
tional criminal justice be drawn up? Are existing mechanisms effective
enough to deal with sexual misconduct within international courts and with
misconduct by former high officials? 52 Part IV deals with some of these
questions, including how to give maximum effect to existing integrity
mechanisms, including oversight mechanisms.
In Chapter 18 (“Codes of Judicial Ethics: An Emerging Culture of
Accountability for the Judiciary?”), the first of five chapters in Part IV, Bet-
tina Julia Spilker writes about the emergence of a culture of accountability
for the judiciary of international criminal tribunals. Despite the importance
of a culture of accountability for actors in judicial proceedings to guarantee
integrity in international criminal proceedings, codes of judicial ethics have
only been adopted recently. Spilker meticulously dissects the existing codes
of judicial ethics of the ICC, ICTY, the International Residual Mechanism
for Criminal Tribunals (‘MICT’), Extraordinary Chamber in the Courts of
Cambodia, Special Tribunal for Lebanon, and Kosovo Specialist Chambers,
examining their preambles and legal bases, the applicable standards en-
shrined therein, and the disciplinary procedures in place. The adoption of
codes and disciplinary procedures are a step towards creating a culture of
accountability for judges in international criminal tribunals as effective in-
stitutional measures. Nonetheless, Spilker claims that states must improve
their involvement in this regard, providing a solid legal basis for the adop-
tion of such principles and procedures when creating these institutions.
Drawing on his personal experience at the ICTR and the European
Court of Human Rights, Judge Erik Møse presents an incisive reflection on
common integrity challenges in international criminal justice and regional
human rights courts in Chapter 19 (“Reflections on Integrity in Interna-
51
See the influential report “The International Secretariat of the Future: Lessons from Experi-
ence by a Group of Former Officials of the League of Nations”, supra note 30, p. 61. The
bracketed word “integrity” replaces “loyalty” in the original.
52
In a statement, the International Criminal Court Bar Association (‘ICCBA’) observes that the
first ICC Prosecutor, “as a former elected official, falls outside the IOM’s investigative
mandate”, see “ICCBA Statement on Allegations Against Former ICC Prosecutor”, 29 No-
vember 2017 (http://www.legal-tools.org/doc/a8cdcb/).

tional Criminal Justice and Regional Human Rights Courts”). Mindful of

their differences, Møse explores the similarities between international
criminal justice institutions and human rights courts, including with regard
to institutional legitimacy and individual integrity, an inter-related issue as
institutional legitimacy requires individual integrity. Møse identifies a rela-
tionship between the reaction to criticism and legitimacy, as an institution
might risk losing its legitimacy when adopting a defensive attitude or not
reacting to well-founded criticisms. Consequently, he argues that these in-
ternational institutions must transparently respond to such challenges, ei-
ther by refuting the criticism or addressing it through measures such as in-
vestigations and reform, while creating a common culture of integrity with-
in the institutions.
Karim A.A. Khan and Jonathan Agar further elaborate on the culture
of integrity within international institutions in Chapter 20 (“Integrity and
Independence in the Delivery of Accountability: Harnessing International
and Domestic Frameworks in Pursuit of Justice for ISIL Crimes”). Arguing
that integrity commences at the leadership and percolates down, Khan and
Agar claim that integrity in investigation and accountability mechanisms
requires a self-sustaining ecosystem, in which all parties are imbued with
integrity, ensuring coherence and commitment by all team members. In do-
ing so, they offer an invaluable account of the lessons learned on integrity
and independence in the delivery of accountability by the United Nations
Investigative Team to promote accountability for crimes committed by
Da’esh (‘UNITAD’) in Iraq. The authors also highlight UNITAD’s deonto-
logical and consequential approaches to integrity. The chapter comprehen-
sively presents the UN and UNITAD normative integrity frameworks and,
importantly, the Investigative Team’s integrity policies and their emphasis
on international and domestic staffing, best practices on documentation and
evidence, and engagement with survivors, witnesses and impacted commu-
nities. Khan and Agar conclude that in addition to a comprehensive integri-
ty framework addressing individual and institutional integrity, concerted
action and commitment from the institutional leadership is required.
In Chapter 21 (“The Wider Policy Framework of Ethical Behaviour:
Outspoken Observations from a True Friend of the International Criminal
Court”), Cyril Laucci scrutinizes the relationship between the legal and
policy frameworks of international institutions and integrity. He provides
an overview of the structure of the ICC internal legal and policy frame-
works, assessing the main areas of legal and policy vacuums and how they

might impact the upholding of integrity at the ICC. In doing so, Laucci
elaborately reflects on the administrative and labour law frameworks in
place at the ICC, practically assessing their gaps and subsequent impacts
on the staff and recruitment policies, particularly those concerning the se-
lection of staff members, the conditions of field operations, disciplinary
procedures, anti-fraud and whistle-blowing policies, and the protection of
information. The chapter argues that whereas strong legal and policy
frameworks alone are not a guarantee of integrity, gaps are pitfalls for in-
tegrity and ethical behaviour within the institution. For this reason, the in-
stitution needs to provide guidance in line with its duty of care.
The question whether the ICC really needs an ethics charter is the fo-
cus of the reflections by Salim Nakhjavani and Suhail Mohammed in
Chapter 22 (“Does the International Criminal Court Really Need an Ethics
Charter?”). The chapter critically assesses the external auditor’s 2018 rec-
ommendations on the need for a new ethics charter by highlighting the ex-
istence of six codes of ethical and professional conduct at the ICC. Arguing
that the problem lies in that transmission does not imply reception, the au-
thors examine whether the ICC’s existing ethical framework communicates
a ‘moral message’, considering specific incidents arising during the
Lubanga trial, some actions by the Prosecutor in the Darfur situation, and
the Ruto and Sang and Gbagbo trials. Concluding that the ‘moral message’
is already present in the ICC’s ethical framework, the authors further re-
flect on its permeation at the level of culture. They conclude that the adop-
tion of an additional ethics charter might be counter-productive or self-
defeating because of double deontology, arguing that the real question is on
the implementation of such ethical framework, which calls for an honest
reading of the reality at the level of culture and persistent conversations on
ethics among the Court’s staff.
7. Integrity and the Lens of Cases
Part V contains four chapters which either look at specific cases notorious
for how they engage issues of integrity, or consider how integrity relates to
some central, case-related work-processes in international courts. The au-
thors chose to focus on certain cases, which had already been the object of
much scrutiny and outside commentary in the media and public arena. It is
clear that more cases deserve attention and more careful analysis is needed
at any given international court or tribunal and also across courts and tribu-

nals. Certainly, a more systematic analysis of a wide scope of cases is re-

quired to comprehensively illuminate integrity in practice.
In Chapter 23 (“Reflections on Integrity in the Prosecution of Inter-
national Cases”), Teresa McHenry and Ann Marie Ursini offer a perceptive
and practical reflection on integrity in the prosecution of international cases.
Drawing on McHenry’s experience as an international and domestic prose-
cutor, the chapter addresses the inside and outside perspectives, the realities
of investigations and resource limitations, the issue of co-operation, and
discovery and disclosure. The chapter discusses the challenges faced by
prosecutors regarding witnesses, such as the dissonance between domestic
and international practice concerning witness preparation, the multiplicity
of witness statements, and the obligations pertaining to security and privacy.
The authors argue that integrity must also be evinced from courtroom con-
duct, extending to the judges’ behaviour and staff recruitment policies. The
chapter concludes that integrity in international justice must mean integrity
among its participants, as well as in the functioning of the institutions
themselves.
The next three chapters provide different perspectives on particular
cases. In Chapter 24 (“Individual Integrity and Independence of Judges:
The Akay Saga”), Antonio Angotti, Basil Saen and Shan Patel focus on the
events following the arrest by Turkish authorities of MICT Judge Akay.
The authors reflect on individual integrity and the independence of judges
while examining the conduct of the involved individuals, namely, the UN
Secretary-General, the UN Legal Counsel, the MICT Prosecution, the De-
fence Counsel for Mr. Ngirabatware, Mr. Peter Robinson, and MICT Presi-
dent and Pre-Review Judge Theodor Meron. The authors identify the rele-
vant ethical codes applicable to each of the individuals and their concrete
actions at relevant points of what they call the ‘Akay Saga’. Nonetheless,
Angotti, Saen and Patel emphasize that achieving integrity is not a one-
time test and goes beyond following normative frameworks, but it is a con-
stant struggle for international civil servants and high officials in interna-
tional justice.
Mohamed Badar and Polona Florijančič analyse the disqualification
of Judge Frederik Harhoff from the Šešelj case and its implications for the
ICTY in Chapter 25 (“The Disqualification of Judge Frederik Harhoff: Im-
plications for Integrity”). The authors address the disqualification, the al-
leged bias displayed by Judge Harhoff, and the content of his much-cited
letter to a group of friends. They examine whether Judge Harhoff’s opin-

ions concerning the alleged change in ICTY jurisprudence were wrong,

scrutinizing concepts such as specific direction, and the Gotovina case and
implementation of joint criminal enterprise. The chapter explores several
claims regarding what is behind the disqualification of Judge Harhoff, in-
cluding possible punishment for questioning the tribunal’s independence
and potential pressure exerted on fellow judges. Badar and Florijančič
highlight the importance of valid criticism of international judicial institu-
tions.
In Chapter 26 (“Integrity in International Criminal Law: Post-
Conviction Proceedings”), Gregory S. Gordon analyses early release pro-
ceedings at the MICT and potential integrity vacuums therein. He reviews
these proceedings in the case of Ferdinand Nahimana, particularly the early
release decision. Gordon provides an account of the ICTR proceedings and
the involvement of Judge Theodor Meron during the merits, including his
dissenting opinion. For Gordon, Judge Meron’s earlier involvement in the
merits and decision on early release raise ethical and due process concerns,
hinting at the existence or appearance of a lack of impartiality or bias on
the judicial level. Systemically, he finds that there was a lack of due pro-
cess and fairness as only one judge was the decision-maker. Seeing integri-
ty as the coherence of the entire procedural scheme, Gordon sets out sever-
al recommendations to strengthen integrity in early release proceedings,
aiming to ensure fairness, transparency and due process in future post-
conviction proceedings.
8. Independence and Integrity
Part VI of the anthology explores the relationship between the principles of
integrity and independence. The authors in this part were asked to discuss
how the integrity standard in international justice relates to the requirement
of independence. This is obviously not just a conceptual question with little
real-world implication. The project conceptualization asked whether recent
technical developments such as WikiLeaks and proliferation of communi-
cation surveillance techniques affect the ways high officials and interna-
tional civil servants of international courts should communicate with repre-
sentatives of embassies or governments. Given that international civil serv-
ants meet their “most severe test in intercourse with government authorities,
whether it be delegates accredited to the organization or officials of the var-

ious departments of national governments”, 53 how close can they be to

governments before the contact jeopardizes integrity?
Other questions asked included whether there are sufficient means to
detect cases where a high official of an international court acts on feelings
of indebtedness towards a government that ensured his or her election or
appointment, especially when the government is that of a great power
whose actions towards the institution are jealously guarded by other
states. 54 Should there be stronger whistle-blower protection for members of
staff who detect signs of such indebtedness, to deter that it be acted upon
(for example in recruitment) and discourage statements in informal settings
that lend themselves to the perception of bias or lack of independence on
this ground? Moreover, are integrity challenges that are linked to the rela-
tions between high officials of international courts and leaders of non-
governmental organizations adequately addressed (including the latter’s
concern for continued financial support from States Parties and the de facto
influence of high officials of the court)? These are among the less comfort-
able questions that deserve careful and open analysis. The authors have an-
swered some of them in this first edition of the anthology, leaving more
work to be done in this area.
In Chapter 27 (“Judicial Independence and Accountability at Interna-
tional Criminal Courts and Tribunals”), Judge Ivana Hrdličková and Adrian
Plevin offer a detailed reflection on the relation between judicial independ-
ence and judicial accountability at international criminal courts and tribu-
nals. The chapter balances the tension between independence and account-
ability, advocating that beyond any conflict, judicial accountability only
enhances and strengthens judicial independence. Considering that judicial
independence is widely deontologically recognized but lacks uniformity in
its promotion and protection among judicial institutions, the authors argue
that accountability mechanisms and ethics codes are required to promote it
and guarantee that judges are answerable for their actions. In pursuance of
uniformity, Hrdličková and Plevin conclude that the proposal of the Paris
53
Lemoine, The International Civil Servant: An Endangered Species, supra note 41, p. 54.
54
There are two sides to instrumentalisation of such feelings of indebtedness: “international
civil servants are, as much as governments, guardians of their own integrity”, see ibid., p. 47.
“[U]sing knowledge and skills acquired by virtue of official position to concoct tactical
moves” in “connivance with national authorities […] is not unknown”, see ibid., pp. 58-59,
where he continues: “Lobbying, approaching delegations in an unofficial and unauthorized
capacity, is another failing some international officials are prone to”.

Declaration for the Effectiveness of International Criminal Justice for a

joint accountability mechanism applicable to international courts and tribu-
nals could lead to the development of a more detailed code of conduct ap-
plicable to all judges, improving the quality of justice and the rule of law.
Former ICTY and ICTR Chief Prosecutor Richard J. Goldstone of-
fers his invaluable insight into the relationship between independence and
integrity in Chapter 28 (“Prosecutorial Language, Integrity and Independ-
ence”). Goldstone provides an insider’s perspective on the fine line be-
tween politics and international law, and how prosecutorial language is key
for international civil servants and judicial staff to navigate the diplomatic
intricacies of international criminal justice. As the former Chief Prosecutor,
Goldstone reflects on his experience at the ad hoc Tribunals, evoking his
engagement with the national governments of France, Denmark and the US
in relation to evidentiary matters relevant to the ICTY, his negotiations with
the Rwandan government as ICTR Prosecutor, his Office’s commitment to
prosecuting sexual and gender-based violence at the ICTR in the face of
civil society’s concerns, and his efforts to uphold his independence even
before the UN Secretary-General. Goldstone concludes that prosecutorial
language is of paramount importance for international prosecutors to dip-
lomatically and astutely manoeuvre international politics without compro-
mising their independence.
In Chapter 29 (“Integrity and the Preservation of Independence in In-
ternational Criminal Justice”), David Donat-Cattin and Melissa Verpile as-
sess the preservation of judicial independence in international criminal jus-
tice, particularly at the ICC. They shed light on the issue of integrity and
judicial independence from a civil society perspective, addressing the in-
terplay between integrity and independence at the ICC, and the perceived
lack of accountability, legitimacy and integrity of international criminal
tribunals. The chapter considers the early phase of the implementation of
the Rome Statute, exploring the statutory requirement of integrity relating
to its application. Donat-Cattin and Verpile further analyse the upholding of
integrity and judicial independence in practice, looking into the role of the
Assembly of States Parties, the issue of immunities in the Al-Bashir case,
the aftermath of the Kenyatta and Ruto cases, and the attacks on the Court
by national governments. The authors conclude that the ailments stemming
from the ICC’s functioning are not fatal since accountability mechanisms
are already in place, highlighting the role of the Assembly in monitoring
the Court’s work as well as the relevance of the election of judges. None-

theless, they caution that the Assembly must perform its tasks of proper
oversight, and restate the system of nomination and elections of judges and
prosecutor recommended by Parliamentarians for Global Action.
Adedeji Adekunle provides reflections on the standards and chal-
lenges on integrity and independence at the ICC in Chapter 30 (“Integrity
and Independence: Common Standards and Uneven Cost of Implementa-
tion”). Even though the concepts of integrity and impartiality are consid-
ered universal and necessary in international justice, Adekunle argues that
the cultural, social or economic background or orientation of the diverse
staff may play a role in their understanding and implementation. Consider-
ing this potential dissonance, he emphasizes the need for evenness and ob-
jectivity in enforcement, implying codification and a clear understanding
thereof through the proper contextualization of the concepts as part of an
institutional framework of beliefs and norms. Adekunle perceptively con-
strues the different types of threats and pressures faced by prosecutors,
judges and other staff at international criminal justice institutions that
might require additional guidance to be dealt with, such as political, post-
employment, economic, socio-cultural and even historical pressure. He
concludes by suggesting an ethics compliance mechanism at the ICC be-
yond the Independent Oversight Mechanism that may reflect practices such
as the EU Ombudsman or the UN Ethics Office.
Christopher Staker offers personal reflections addressing the anathe-
ma of political exposure of international criminal tribunals in Chapter 31
(“Integrity and the Inevitable Political Exposure of International Criminal
Justice”). While political influence in the judiciary is generally condemned,
Staker argues that this exposure is necessary when the totality of criminal
justice is considered. International criminal justice is probably more vul-
nerable to such influence given the role of states as sovereign decision-
makers. ICC proceedings are often marked by political decisions made by
states – from the triggering of the Court’s jurisdiction, to withdrawal from
the Statute. States might also seek to persuade the Court regarding prosecu-
torial policies. Bearing in mind the unavoidability of the Court’s political
exposure, Staker notes that a common understanding of the appropriate role
of political decision-makers and its limitations is required for prosecutors
and judges to know in light of their independence and integrity.
In concluding Chapter 32 (“Some Reflections on Integrity in Interna-
tional Justice”), Judge David Re rounds off Part VI of this anthology with
an appropriately sober analysis of the systemic factors that make it more

difficult in practice to uphold integrity in international courts than at the

national level. Through several examples of integrity dilemmas that he has
observed in international(ised) criminal jurisdictions and national practice,
he suggests that it is not easy to progress through mere codes of conduct
and basic compliance mechanisms.
9. Growing Recognition of the Importance of Integrity
There has been a marked increase in the references to integrity in interna-
tional justice since April 2017, when the steps leading to this book intensi-
fied, as detailed in our Preface above. 55 There was a palpable interest in the
international conference on the topic in the Peace Palace in The Hague in
December 2018, as well as in the films and podcasts of the presentations
made at the conference. Integrity now appears to be in fashion. The theme
of integrity in international justice even became a watchword during the
months in 2020 leading up to the election of the third ICC Prosecutor and
new ICC judges. This surge in interest should be welcomed wholeheartedly,
although one should be weary of any attempt to instrumentalize what is a
fundamentally important subject for the future of international justice (for
example, pursuant to personal ambition linked to court elections or preser-
vations of jobs). Anecdotes can obviously be valuable if they translate into
proper evidence, whereas deliberate rumour mongering and prejudice must
be handled with care when basic interests of international courts as well as
individuals are at stake.
The Integrity Project offers a comprehensive, serious review of the
integrity standard in international justice, with a view to contributing to our
awareness of integrity and which measures may be best suited to strengthen
respect for integrity in international justice. The book is teeming with ideas,
suggestions and advice about such measures, while it at the same time of-
fers profound theoretical perspectives and background analysis to deepen
our understanding. The book does not shy away from some of the inevita-
bly thorny issues and vigorous debates in the field, without tabloidizing
serious concerns. International judges and prosecutors – and other high of-
55
See, for example, Open Letter to Committee on the Election of the ICC Prosecutor: Zero
Tolerance Must be Shown Towards Sexual Harassment, 17 February 2020 (https://www.
legal-tools.org/doc/cx0yns/); Danya Chaikel, “ICC Prosecutor Symposium: The Next ICC
Prosecutor Must Embody Integrity in #MeToo Era”, in Opinio Juris, 16 April 2020 (availa-
ble on its web site). See also UN Office on Drug and Crime, “UN Launches Global Network
of Judges to Strengthen Integrity in Courts”, 9 April 2018 (https://www.legal-tools.org/
doc/5r526m/).

ficials of international courts – are public figures and their work should
therefore be subjected to direct critical review. That comes with the job and
this is one of the reasons why such high officials are highly remunerated. In
order to execute their weighty responsibilities under the statutory instru-
ments of international courts, the States Parties need to be assisted by clear-
ly articulated, critical assessments that are not artificially constrained by
fear of sanction or a desire to be cited in decisions or submissions. It is in
the institutional interest of international courts that critical analysis not be
impeded by a deference which may be appropriate within legal fraternities
and their practice, but do not apply in the same way outside. As it turns out,
the high officials who are mentioned by some authors in this anthology are
in most cases so accomplished that their long-standing merits and
achievements are well established.
Integrity is certainly lamented if it is seen as missing. It is also often
referred to when discussing prescriptions for institutional reform. Interest
in the integrity and ethics of governance has increased significantly in the
last years, given a growing commitment of international organizations to
fight corruption and safeguard integrity. More recently, the International
Bar Association’s ‘2019 International Principles on Conduct for the Legal
Profession’ sets out ten relevant principles for legal professionals to guide
their professional duties, including independence, honesty, integrity and
fairness. 56 Committees and conferences are organized and full-blown integ-
rity programmes created. 57 Networks and institutional bodies and policies
with an explicit focus on integrity are established. For example, the
UNODC’s Global Judicial Integrity Network was officially established in
Vienna in April 2018. In March 2020, over 700 participants from 118 coun-
tries and 50 judicial associations and organizations, met for a high-level
event of the Network. This shows the interest in integrity-related topics and
the appeal of sharing experiences. Another example beyond the judicial
arena is the High Level Panel on International Financial Accountability,
Transparency and Integrity for Achieving the 2030 Agenda launched in
56
See International Bar Association, IBA International Principles on Conduct for the Legal
Profession, approved on 25 May 2019 by the Council of the International Bar Association
(available on the IBA web site).
57
Integrity programmes may include various measures, such as a code of conduct, an integrity
office(r), integrity training, whistle-blowing procedures, policies for misconduct, and pre-
employment screening. See, for example, Alain Hoekstra and Muel Kaptein, “The Integrity
of Integrity Programs: Toward a Normative Framework”, Public Integrity, 7 July 2020,
pp.1-13.

April 2020 by the Presidents of the UN General Assembly and the Eco-
nomic and Social Council. Furthermore, NATO’s Building Integrity Pro-
gramme has been in place since 2007 and a Building Integrity Policy has
been endorsed since 2017. Put simply, a key challenge often observed is
getting from talking the talk to walking the walk.
In his Foreword to this book, Justice Richard J. Goldstone refers to
the final report of the Independent Expert Review Group (‘IER’) appointed
by the Assembly of States Parties to review the working of the International
Criminal Court and the Rome Statute system, and his hope that “the present
anthology will contribute to the momentum around the tremendous im-
portance of integrity in international justice” (see above). As described in
our Preface to this book, the Assembly’s 2019 establishment of the IER
mandate 58 followed a recommendation at the early stages of the Integrity
Project. On 30 September 2020, the IER published its final report, which
runs to 348 pages and includes 384 recommendations, of which 76 are
summarised as “prioritised recommendations” in Annex I. 59
Following a description of its terms of reference, 60 the IER report
first addresses Court-wide matters, such as governance, human resources,
ethics and prevention of conflicts of interest, and internal grievance proce-
dures; before addressing organ-specific matters of Chambers, the Office of
the Prosecutor and Registry, delving into their working methods, the Code
of Judicial Ethics, defence-related matters and victim participation, repara-
tions, and assistance. The report also examines matters such as the Court’s
external governance, oversight bodies and mechanisms, and the system of
nomination of judges.
The notion of integrity – its different meanings and relevancy for the
legitimacy of international justice institutions – is visible throughout the
report, particularly where ethical and appropriate behaviour is discussed.
The report states that “ethics has been identified as an important topic for
58
See, ICC, Assembly of States Parties, Review of the International Criminal Court and the
Rome Statute system, ICC-ASP/18/Res.7, 6 December 2019 (https://www.legal-tools.org/
doc/d1fyfk/). The task was assigned to a Group of Independent Experts comprised of nine
members and chaired by Justice Richard J. Goldstone, who has also contributed Chapter 28
below (“Prosecutorial Language, Integrity and Independence”).
59
Status System, Final Report”, supra note 2, p. 331 (https://www.legal-tools.org/doc/cv19d5/).
60
Review of the International Criminal Court and the Rome Statute system, ICC-ASP/
18/Res.7, 6 December 2019, Annex I, p.4 (https://www.legal-tools.org/doc/d1fyfk/).

all stakeholders”, 61 highlighting “allegations of conflicts of interest, poten-

tial ethics violations or inappropriate behaviour”. 62 It further observes:
Such events, whether truly inappropriate behaviour was in-
volved or not, can impact the Court both externally and inter-
nally. The Court’s reputation, credibility and trust is eroded,
risking lower support by States Parties and civil society. Inter-
nally, it can affect staff productivity and welfare, and in some
instances can represent a financial risk for the institution. 63
The Group of Experts acknowledges the creation of the Independent
Oversight Mechanism (‘IOM’) and the need to strengthen it, 64 as advocated
by some of the contributors in Part II of this anthology in relation to the
awareness and culture of integrity that should be a dominant feature of in-
ternational justice. The report incisively assesses the Court’s workplace
culture and environment as being affected by instances of harassment and
bullying, 65 and characterised by “a general reluctance, if not extreme fear,
among many staff to report any alleged act of misconduct or misbehaviour”
(para. 302). While the report highlights that the Court appears to suffer in-
ternally from distrust and a culture of fear at all levels (para. 62), especially
concerning are those findings related to the leadership’s role in fostering
such a working environment. 66
In addition to oversight and accountability mechanisms, the Group of
Experts stresses “the inadequacy of existing mechanisms in the Court to
deal with complaints of bullying and harassment” and emphasise the need
for change regarding the environment and practices that allow inappropri-
ate behaviour to occur (para. 210). The IER also highlights particular
measures that the Court can internally adopt to foster integrity, transparen-
cy and accountability. As such, it refers to the creation of an ethics commit-
tee “to promote and ensure coherent high levels of integrity and profes-
sionalism across the organisations, advise leadership on matters related to
the applicable code of conduct, offer guidance and advice on ethical issues
to individuals taking part in the organisation’s activities” (para. 276). Such
concrete and precise mechanisms and venues are required to address the
61
IER report, supra note 2, para. 254.
62
Ibid..
63
Ibid., para. 255.
64
Ibid., paras. 265-268, 284-289.
65
Ibid., para. 72.
66
Ibid., paras. 63, 72-74, 298.

accounts of bullying, sexual harassment and discriminatory behaviour to-

wards women (para. 209), as it is also strongly argued in Part III of this
book on the role of international organizations and states.
The IER report also lays out the ICC’s ethics framework and the in-
struments that it is comprised of, including the Code of Judicial Ethics, the
Code of Conduct of Staff, the Code of Conduct for the OTP, the Code of
Professional Conduct for (external) counsel, and the Code of conduct for
investigators (para. 257). This framework is extensively discussed in Part
IV of this compilation, with five chapters addressing the role of interna-
tional courts in upholding integrity within their organizations. While the
Experts recognise the comprehensive regulatory framework of the Court’s
expected behaviour, they characterise the framework as fragmented, em-
phasising the need for “clear common principles and minimum standards
applicable to all individuals affiliated with the Court, whether elected offi-
cials, staff or externals” (para. 261), to guarantee the consistent implemen-
tation across the Court. Furthermore, analysing the Court’s Code of Judi-
cial Ethics from a comparative point of view, the report finds that, “on in-
tegrity, while the Codes of IRMCT, the STL and ICTY require judges to
treat other judges and staff with dignity and respect, and not to engage in
any form of discrimination and harassment, including sexual harassment
and abuse of office, the Court’s Code is silent” (para. 456). On this matter,
the Group of Experts goes as far as to suggest an improvement through a
“unified, Court-wide Ethics Charter applicable to all elected officials, staff
and individuals affiliated with the Court” (para. 262).
Throughout the IER report, particular attention is given to the integri-
ty of judges as an essential component of international justice. Clear ethical
standards are required for all individuals working with the Court, but spe-
cial consideration must be paid to those concerning the judges. As distilled
from the consultations carried out by the Group of Experts, “the growing
number of requests for disqualifications of Judges that – together with the
fact that Judges themselves decide on the matter – erodes public trust in the
bench and the Court as a whole” (para. 256). In fact, an adjusted discipli-
nary arrangement and scheme for effective accountability is discussed in
detail by the IER with a view to enhancing integrity in the judiciary and the
credibility of the disciplinary mechanisms against judges (paras. 311-321).
Cases involving the disqualification of judges and questions of integrity are
also assessed in Part V of this book addressing the integrity of the judiciary
through the lens of trial and post-trial proceedings.

Independence – which is a cross-cutting concern throughout this an-

thology, with Part VI specifically dedicated to this principle – is also un-
derscored by the IER as being of paramount importance for integrity in in-
ternational justice. The tension between the Court’s independence and po-
litical exposure is noted in the IER report as it remarks that “the ICC is
both a judicial entity (ICC/Court) and an international organization
(ICC/IO). As a judicial entity, the Court must benefit from judicial inde-
pendence. As an international organization, States Parties reasonably ex-
pect to be able to guide and shape the institution” (para. 26).
In this vein, and although it was not remitted to the Experts, the IER
considered it necessary to address the need for improvement of the system
of nomination of judges. Consequently, it refers to “evidence of just how
significant the role that politics can play in the election of Judges” (para.
963). Nonetheless, in “the face of the indication that there is currently no
appetite to abandon this practice and elect Judges solely on merit, and in
the absence of confidence in the integrity of the election process, it was
considered appropriate to concentrate on the nomination procedure” (para.
964).
The comprehensive final report of the IER may be seen as an im-
portant step forward in the strengthening of integrity in international justice
and at the ICC. As an external review commissioned by the ICC States Par-
ties, its recommendations are so incisive and pragmatic that it can reasona-
bly be expected to positively impact the integrity of ICC staff members and
high officials, and the performance of the Court as well as other interna-
tional judicial institutions. The report should help to consolidate the recog-
nition of integrity as fundamental to international justice. That said, one
recognizes the integrity challenge faced by those who stand to lose from
some of the IER recommendations, in particular members of the Secretariat
of the Assembly of States Parties (some of whom are in direct contact with
the same diplomats who will be making the decisions on the recommenda-
tions). Developments in the field now will depend on how the report is re-
ceived and acted upon in the short and long term.
10. The Will to Let Integrity and Uprightness Distinguish Our Acts
Looking back at the preceding sections – as elaborated in the next 32 chap-
ters – we see that integrity is indispensable to international justice. As Jus-
tice Goldstone writes in his Foreword to this book:

The integrity of any court system lies at the very core of its
mission. Without it, inevitably, there will be an absence of
confidence in the judges and the outcome of cases that come
before them will be questioned. Judges have no police or mili-
tary force to ensure the implementation of their orders. They
must perforce rely on the respect for their decisions by the
other branches of government. Their allegiance must be owed
solely to the application of the law and adhere to an ethical
code to guide their work. This applies to all national systems
of justice.
Corruption or other forms of integrity-deficit in a justice system,
whether actual or perceived, is potentially fatal. Doubts about integrity can
delegitimize and paralyze organizations and individuals – even institutions
whose mandate enjoys broad public support can become overwhelmed by
critique. Indeed, it is discernible that the integrity performance of interna-
tional justice has come to weigh directly on the will of states to further
strengthen the rule of international law. 67
Strengthening the culture of integrity is important to prevent integrity
violations and, when they do occur, to address them effectively. Integrity,
impartiality and independence are core requirements for a functioning, ef-
fective, and meaningful judiciary or justice system. Using accountability is
also necessary to restore public confidence in justice institutions where
there has been erosion. There is an expectation of acknowledgment of what
went wrong – often referred to as truth-telling in international criminal jus-
tice – and that one or more individuals take responsibility or are held ac-
countable. This is all the more important for international justice institu-
tions which depend on the continued support of a diverse group of States
Parties, the public, and victims of wrongdoing.
Nurturing integrity within international justice institutions requires
careful and critical contemplation on the functioning of institutions, values,
rules and purposes, and a wider commitment to the international legal order.
Such introspection is not easy, but there would seem to be a direct interest
for international lawyers and high officials within and around these courts
to do so, with a view to improving the institutions from within and ena-
67
Performance of international courts is being subjected to more scrutiny, see Theresa Squatri-
to, Oran R. Young, Andreas Føllesdal and Geir Ulfstein, The Performance of International
Courts and Tribunals, Cambridge University Press, 2018; Stuart Ford, “How Much Money
Does the ICC Need?”, in Carsten Stahn (ed.), The Law and Practice of the International
Criminal Court, Oxford University Press, 2015.

bling them to withstand growing scrutiny. We should do so mindful that

“progress is possible on issues of professional responsibility, and that it
matters”. 68 This is not primarily a question of financial resources, but one
of will to let integrity and uprightness distinguish our acts.
Reviewing institutional practice can be a painstaking process. But it
is essential in order to build enduring institutions and to be equipped to ad-
dress ethical dilemmas as addressed in this book. The IER report is an ex-
ample of an external review exercise long in preparation. It thoroughly
analyses the existing normative and enforcement framework and what can
be done to improve it. Many chapters in this book elaborate further on the-
se questions.
What causes integrity violations? Indications are that it is a combina-
tion of legal, social, political, organizational and individual factors, but this
is an area that may require further research and analysis. Leadership is im-
mensely important. Leaders set the tone of the organization, and model be-
haviour and policies through their conduct. But the high officials of inter-
national courts are not the only individuals who are important for the cul-
ture of integrity in an institution. Integrity violations are always committed
by individuals, even when they act through institutions. This is why the
main focus of this book is on individual integrity of actors within interna-
tional justice institutions (although several chapters also consider institu-
tional integrity). This is an area where the anthology adds an additional
paradigm to the IER report, by exploring in detail the origins and meaning
of the integrity standard, how awareness of integrity can be raised, and
what contributes to reinforcing an integrity mindset in staff and a culture of
integrity in the agency in question.
The interplay of formal prescription and rule-compliance, on the one
hand, and norm setting and cultural approaches, on the other hand, as high-
lighted at the outset of this chapter, seems paramount. Discussing the al-
ready dense ethics framework of the International Criminal Court, Salim A.
Nakhjavani and Suhail Mohammed make a pertinent observation in their
Chapter 22 below:
So, the ICC’s “moral message” to its staff is not missing. Far
from it – at least on paper. But transmission does not imply
reception. The real question is how the message is translated
into action, both individually and collectively. And the real
68
Rhode and Luban, supra note 28, p. 1074.

challenge is that there may be little appetite for the promulga-

tion of yet more ethical standards in a social space already in-
undated by expressions of moral righteousness, and in a world
weary of empty speech. 69
They continue:
The literature in management science makes plain that the
mere existence of ethics charters and codes of conduct, does
not in itself guarantee ethical conduct by staff within an or-
ganisation. This is especially true in instances when enforce-
ment is lacking. There is no reason why this logic would not
apply to the ICC, whose robust ethical framework, it would
appear, has not spontaneously generated virtue in all individu-
als under all circumstances. 70
The intuitive approach of lawyers – codes of conduct and compliance
procedures – is simply not enough, however well-embedded in the organi-
zation. There is no way around individual will to integrity. Integrity is prac-
ticed by individuals, through their acts and omissions. Integrity is more
than anything a quality or value of individuals. Individuals are the source
of all the integrity breaches that have reportedly occurred within the ICC
and other international courts. The harm inflicted on the reputation of these
institutions originates in individual high officials and staff members, not in
abstract entities, to paraphrase the Nuremberg Judgment, which added a
vital reminder of the need to punish individuals who commit such breach-
es. 71 As pointed out by Jan Fougner – a leading expert on independent in-
quiries – in his chapter in this anthology, the IER is not an inquiry that pre-
pares the ground for sanctioning of those responsible for the alleged integ-
rity breaches at the ICC, but a systemic review. 72
69
Salim A. Nakhjavani and Suhail Mohammed, “Does the International Criminal Court Really
Need an Ethics Charter?”, Chapter 22 below (italics added).
70
Ibid. (footnotes omitted; italics added).
71
The sentence in the Judgment reads: “Crimes against international law are committed by
men, not by abstract entities, and only by punishing individuals who commit such crimes
can the provisions of international law be enforced”, see International Military Tribunal,
Judgment, 1 October 1946 (https://www.legal-tools.org/doc/f21343/).
72
See Jan Fougner, “On Whistle-Blowing and Inquiry in Public Institutions”, Chapter 16 be-
low. See also the Norwegian Helsinki Committee, Letter to the President of the Bureau of
the Assembly of States Parties of the International Criminal Court, 26 October 2020 (https://
www.legal-tools.org/doc/jo7vkx/).

Understanding the role of the individual in ensuring integrity in in-

ternational justice is therefore one of the main features of this anthology.
This not only involves individual will to integrity – including preparedness
to make personal sacrifices to uphold integrity when we come under pres-
sure – but also accountability for those who violate statutory integrity re-
quirements, including high officials who may have engaged in intimidation
and retaliation against staff members merely seeking to uphold their integ-
rity obligations. Such retaliation can in some circumstances amount to an
offence against the administration of justice, also under the Statute of the
ICC. Impunity for such breaches by high officials will almost unavoidably
undermine the will to integrity in the organization affected, even if fear is
deployed as an instrument of selective compliance. It is exceptionally diffi-
cult to achieve a culture of integrity in an international court if high offi-
cials get away with serious integrity breaches without sanction. Leaders of
highly value-driven organizations may generate a charisma or atmosphere
that induces the feeling that the ethical mandate justifies conduct lacking in
integrity. 73 But, as was pointed out by Morten Bergsmo at the integrity con-
ference in the Peace Palace in December 2018, we cannot operate with
such a Faustian curtain in international justice:
The Faustian myth – the belief that the highly talented person
can deliberately compromise some standards to achieve higher
knowledge or performance – is not a universally shared myth.
It is actually a highly offensive proposition in Chinese culture
or in Islam. 74
This book does not only analyse these rather obvious mechanics of
integrity. It also deliberately turns the coin of motivation, to help our under-
standing of what motivates conduct positively characterised by integrity –
to help us not only raise ethics problems, but to do something to prevent
them. This is why, for example, Part I of the book contains chapters on pos-
itive advocates of integrity such as Sir Thomas More and Dag Hammar-
skjöld. In case of a second edition of the book, we hope to be able to in-
clude additional role models. This is also why you find chapters on philo-
73
See Dieneke T. de Vos, “Institutional Ethics, Individual Integrity, and Sexual Harassment:
Recent Developments in Ethics Standard-Setting and Mechanisms at the United Nations”,
Chapter 13 below.
74
See Morten Bergsmo, “Integrity as Safeguard Against the Vicissitudes of Common Justice
Institutions”, CILRAP Film, The Hague, 1 December 2018 (https://www.cilrap.org/cilrap-
film/181201-bergsmo/).

sophical background and analysis of integrity, as well as on religious foun-

dations of the concept of integrity. 75 We would have liked to include more
such perspectives.
International organizations are there to give effect to international
law in international relations. In this book it is suggested that international
organizations will not succeed in fulfilling their mandate unless the integri-
ty standard is protected within the organizations. Whether we like it or not,
integrity is a prerequisite for international law to be able to serve as a ‘gen-
tle civilizer of nations’. 76 A serious discourse on integrity in international
justice must be multi-disciplinary: it needs to draw on philosophy, religion,
history, psychology, sociology, and law, among other perspectives. Interna-
tional lawyers seem to be inclined to believe in the civilizing effects of in-
ternational law in international relations. But single-minded insistence on
normative codes of conduct and compliance mechanisms – tools of the le-
gal profession – is not alone solving integrity problems, as may become
apparent when international justice and other multilateral organizations
come under further scrutiny.
75
Ethics and integrity as moral virtues and philosophical concepts have recently been revisited
as the foundations of international justice. See Amartya Sen, “Ethics and the Foundation of
Global Justice”, in Ethics and International Affairs, 2017, vol. 31, no. 3, pp. 261-270; Ste-
ven Ratner, “Ethics and International Law: Integrating the Global Justice Project(s)”, in In-
ternational Theory, 2013, vol. 5, no. 1, pp. 1-34.
76
See Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International
Law 1870-1960, Cambridge University Press, 2002.

PART I:
MEANING OF INTEGRITY
1
______
Physically Upright, Morally Sound:
Recreating Ancient ‘Integrity’
Emiliano J. Buis *
1.1. Introduction
In recent times, international justice has been the object of harsh criticism.
The question concerning the ways to overcome this disapproval is a com-
plex one. In any case, it seems quite clear that, in times of institutional cri-
sis, a good bottom-up starting point is reassessing the role of those individ-
uals who are personally involved in international tribunals. The standard
and practice of ‘integrity’ become therefore an essential threshold to im-
prove the proper functioning of courts and organizations; it is of the utmost
importance to raise awareness about the high moral character that is (or
should be) required when electing or appointing professionals expected to
hold public office. 1 And, in this vein, a historical approach to the meaning
of ‘integrity’ is essential. We are much better placed to discuss the sensi-
tivities of ethical principles if the ancient values underlying our modern
conception are properly understood.
The purpose of this chapter is to understand the logics behind the no-
tion of ‘integrity’ in ancient Greece and Rome – including terminology and
*
Emiliano J. Buis received his Ph.D. from the University of Buenos Aires, Argentina, and is
Professor of Public International Law, International Humanitarian Law, the Origins of Inter-
national Law in Antiquity and Ancient Greek Language and Literature at the University of
Buenos Aires and the Central National University in Azul, Argentina. He is also a Research-
er at the National Research Council for Science and Technology (CONICET). He is a former
fellow at the Department of Classics, Brown University, the Max-Planck Institut für euro-
päische Rechstgeschichte, the Harvard University Center for Hellenic Studies, the Alexander
S. Onassis Public Benefit Foundation, the Center for Epigraphical and Paleographical Stud-
ies (Ohio State University), and the Center for Hellenic Studies at Princeton University. I
wish to thank Morten Bergsmo, Viviane Dittrich and all the organizers, speakers and partici-
pants at the international expert conference on ‘Integrity in International Justice’ (Peace Pal-
ace, The Hague, 1-2 December 2018), for their extremely useful comments and suggestions.
I am indebted to all of them. All mistakes and inexactitudes which remain in the text are ob-
viously my own.
1
Morten Bergsmo, “Revisiting Integrity in International Justice”, FICHL Policy Brief Series
No. 93 (2018), Torkel Opsahl Academic EPublisher, Brussels, p. 1 (http://www.toaep.org/
pbs-pdf/93-bergsmo).

semantical scopes – taking into account its rhetorical elements. In the con-
text of the project conference held in The Hague and this edited volume
dealing with integrity in international justice, my aim here is to offer a suc-
cinct introduction to the physical and moral, and thus, political, dimensions
of integrity in some Greek and Latin texts that can be relevant to appreciat-
ing its implications. In that sense, although there does not seem to be in
antiquity a single notion that can deliver the complex meaning of integrity,
my intention is to explain how ancient sources dealing with physical and
ethical values may contribute to a better understanding of the multifaceted
relationship between integrity and the administration of justice today.
The first part of my chapter will deal with the pre-classical image of
justice and rightness as related to truth, which becomes relevant when ex-
ploring the nature of ethical integrity. Ancient texts show a close associa-
tion between telling lies and corruption, which would be later developed in
the politics of integrity laid in classical Greek and Roman testimonies, as
examined in the second and third part of the chapter. In my conclusions, I
will reveal why I believe that revisiting these pre-Christian sources be-
comes a useful exercise in the quest for a comprehensive view of integrity
as a key concept in modern international law.
1.2. Origins of ‘Integrity’?
In a ground-breaking book published in Paris in 1967, Marcel Detienne
focused his attention on what he called the ‘masters of truth’ (les maîtres de
vérité) in archaic Greece. He stated that figures of authority such as the
prophet, the poet, and the king-judge, always spoke the truth because they
represented the voice of the gods; an inspired ruler could never act in a
wrongful manner. According to this reading, in pre-classical times, these
three leading figures – the diviner, the bard, and the king of justice – shared
the privilege of dispensing truth purely by virtue of their qualities: they
could tell ‘what was’, ‘what is’ and ‘what will be’ because of their posses-
sion of a similar type of speech. By means of the religious power of
memory, Mnemosýne, they had direct access to the divine authority. 2
In ancient Greece, the notion of truth (ἀλήθεια, alétheia) was directly
related to justice (δίκη, díke), since it asserted a parole efficace which con-
2
Marcel Detienne, Les maîtres de la vérité dans la Grèce archaïque, Maspero, Paris, 1967,
pp. 15–16.

1. Physically Upright, Morally Sound: Recreating Ancient ‘Integrity’
tributed to the creation of the world. 3 In the archaic world, the judicial sen-
tences, or θέμιστες (thémistes), were possessed by the king, who acted as
judge and had been granted authority directly through a divine agent. 4 The
judicial word, in this context, constituted an authorized statement about
good and evil: the judge, inspired or plunged into enthousiasmós, simply
dictated a verdict that was enunciated to his mind by a higher power. Sen-
tences, far from constituting a human manifestation, derived from the ex-
clusive will of the gods – they were a means of reproducing Olympic deci-
sions among mortals. 5
This close contact between judicial activity and religious support led
Louis Gernet, one of the most recognized experts in Greek legal anthropol-
ogy, to postulate a strong bond between legal institutions and ritualism,
based on what he denominated pre-law (pré-droit). In that context, deci-
sions pronounced by a king-judge – through whom the gods expressed
themselves – had the character of obscure revelations or self-imposing ora-
cles. 6 It was because of the association with the goddess Thémis (a divinity
usually related to oracular discourse) that the discussion of law (θέμις,
3
Jean-Pierre Levet, Le vrai et le faux dans la pensée grecque archaique, Étude de vocabulaire,
Les Belles Lettres, Paris, 1976, pp. 1–3, points out that in Greek the notion of truth is ex-
pressed through terms presented as negative: the most frequent words – the adjective ἀληθής
and the noun ἀλήθεια (lit. ‘lack of remembrance’) – show that obtaining the truth implied
etymologically a concrete activity destined to unveil, to get out of oblivion, to bring some-
thing to memory as an act of justice. From that place, then, ἀ-λήθεια conceptually implies an
active movement and expresses a step of discovery: the truth does not seem to be given in
the abstract for its knowledge or apprehension. From the pre-philosophical thinking of the
archaic world onwards, the notion of truth has been associated with discourse, stories, and
verbal expression of thought. I have explored the notiong of legal truth in ancient Greece el-
sewhere; see Emiliano J. Buis, “Ficciones y p(ersu)asiones de la verdad: la retórica judicial
de la alétheia en el derecho griego arcaico y clásico”, in Germán Sucar and Jorge Cerdio
Herrán (eds.), Derecho y verdad II “Genealogía(s)”, Tirant lo Blanch, Madrid, 2015,
pp. 247–320.
4
Henry Sumner Maine, Ancient Law. Its Connection with the Early History of Society and its
Relation to Modern Ideas, John Murray, London, 1861, considered with certain exaggera-
tion that every single aspect of ancient law was dependent, in its first manifestations, on di-
vine authority.
5
Karl-Joachim Hölkeskamp, Schiedsrichter, Gesetzgeber und Gesetzgebung im archaischen
Griechenland, Franz Steiner, Stuttgart, 1999.
6
Louis Gernet, “Droit et pré-droit en Grèce ancienne”, in L'année sociologique, 1951, no. 3,
pp. 21–119.

thémis) was transferred to the field of mantic. 7 Therefore, in pre-classical

times, judgments and oracles had a common origin based on an authority
located beyond the world of mortals. 8 The judge was a divine spokesperson,
and the ordeal implied a test whose religious virtue, according to Gernet,
immediately decided a controversy by translating, without active interme-
diaries, the undisputed will of the gods: the symbols of pre-law acquired
full significance through the unbeatable force of religion. Knowing the
principles of divine justice meant participating in an unquestionable truth,
as Hesiod conveys in describing the birth of Nereus and his wisdom (The-
ogony, 234-237):
Νηρέα δ᾽ ἀψευδέα καὶ ἀληθέα γείνατο Πόντος,
πρεσβύτατον παίδων· αὐτὰρ καλέουσι γέροντα,
οὕνεκα νημερτής τε καὶ ἤπιος, οὐδὲ θεμιστέων
λήθεται, ἀλλὰ δίκαια καὶ ἤπια δήνεα οἶδεν·
And Sea begat Nereus, the eldest of his children, who is true
(alethéa) and lies not (apseudéa): and men call him the Old
Man because he is trusty and gentle and does not forget the
laws of righteousness, but thinks just (díkaia) and kindly
thoughts. 9
The quotation clearly shows a set of terms through which the adjec-
tives (morphologically negative) that refer to truthfulness and lack of lies
(ἀ-ψευδέα, a-pseudéa; ἀ-ληθέα, a-lethéa) are connected to the value of
memory as a rejection of forgetfulness (οὐδὲ [...] λήθεται, oudè […] léthe-
tai), as a way of imposing the laws of Zeus: θεμιστέων (themistéon).
Justice seemed to respond to the purposes of the gods, and therefore
‘straight’ rulers were required to translate divine inspiration when deciding
a case.
Nevertheless, this strict relationship between justice, truth and cor-
rectness could be shattered when kings chose to oppose the will of the gods,
7
On thémis and its relationship to its particular statutes (thémistes), see Jean Rudhardt, Thé-
mis et les Hôrai. Recherches sur les divinités grecques de la justice et de la paix, Droz, Ge-
nève, 1999.
8
Arnaldo Biscardi, Diritto Greco Antico, Giuffrè, Milano, 1982, pp. 352–354, argues that
thémistes were public expressions of the ineluctable will of the gods.
9
Here and elsewhere, the Greek text of Hesiod and its translation are taken from Hugh G.
Evelyn-White, Hesiod. The Homeric Hymns and Homerica, Harvard University Press and
William Heinemann, Cambridge (MA) and London, 1914.

as presented in epic poetry. 10 In Book XVI of the Iliad, for instance, Pa-
troclus fails to comply with Achilles’ request to return to the ships. Instead,
he attacks the Trojans, forcing them to escape. The snorts of the horses of
the enemies fleeing from Patroclus are compared, with a typically Homeric
simile, with the excess of those who sentenced incorrectly and deserved
divine punishment (Iliad XVI.384-393):
ὡς δ᾽ ὑπὸ λαίλαπι πᾶσα κελαινὴ βέβριθε χθὼν
ἤματ᾽ ὀπωρινῷ, ὅτε λαβρότατον χέει ὕδωρ
Ζεύς, ὅτε δή ῥ᾽ ἄνδρεσσι κοτεσσάμενος χαλεπήνῃ,
οἳ βίῃ εἰν ἀγορῇ σκολιὰς κρίνωσι θέμιστας,
ἐκ δὲ δίκην ἐλάσωσι θεῶν ὄπιν οὐκ ἀλέγοντες
τῶν δέ τε πάντες μὲν ποταμοὶ πλήθουσι ῥέοντες,
πολλὰς δὲ κλιτῦς τότ᾽ ἀποτμήγουσι χαράδραι,
ἐς δ᾽ ἅλα πορφυρέην μεγάλα στενάχουσι ῥέουσαι
ἐξ ὀρέων ἐπικάρ, μινύθει δέ τε ἔργ᾽ ἀνθρώπων˙
ὣς ἵπποι Τρῳαὶ μεγάλα στενάχοντο θέουσαι.
As the whole dark earth bows before some tempest on an au-
tumn day, when Zeus rains his hardest to punish men for judg-
ing crookedly in their courts, and arriving justice there from
without heed to the decrees of heaven – all the rivers run full
and the torrents tear many a new channel as they roar head-
long from the mountains to the dark sea, and it fares ill with
the works of men – even such was the stress and strain of the
Trojan horses in their flight. 11
10
On the debates surrounding justice in archaic Greece, see Michael Gagarin, “Dikē in Archaic
Greek Thought”, in Classical Philology, 1974, no. 69, pp. 186–197; Matthew W. Dickie,
“Dike as a moral term in Homer and Hesiod”, in Classical Philology, 1978, no. 73, pp. 91–
101; Joanna Janik, “Dike and themis in the works of Homer”, in Eos, 2000, no. 87, pp. 5–31,
and more recently Christos Antypas, “Dike in a pre-polis society: the evidence from Homer-
ic epic”, in Menelaos Christopoulos and Machi Païzi-Apostolopoulou (eds.), Crime and
Punishment in Homer and Archaic Epic (Proceedings of the 12th international Symposium
on the Odyssey, Ithaca, September 3-7, 2013), Center for Odyssean Studies, Ithaca, 2014,
pp. 39–46. A study on the vocabulary of justice in archaic Greek literature can be found in
Joanna Janik, Terms of the Semantic Sphere of δίκη and θέμις in the Early Greek Epic (Stud-
ies of the Commission on Classical Philology, vol. 30), PAU, Krakow, 2003.
11
The Greek text has been taken from A.T. Murray, Homer. The Iliad, Cambridge
(MA)/London, Harvard University Press/William Heinemann, 1924. The translation corre-
sponds to Samuel Butler, The Iliad of Homer, Longmans, Green & Co., London, 1898.

Set in the agora – the public square understood as a space for verbal
exchange 12 – the image contained in these verses describes those who solve
cases against the guidelines established by the gods. These men alluded in
the passage are the Homeric kings (βασιλῆες, basilées) who were in charge
of the task of imparting justice. Achilles himself had mentioned them be-
fore (Iliad I.237-239), asserting that the sons of the Achaeans behaved as
administrators of justice (δικασπόλοι, dikaspóloi) and were guardians of
the decrees of Zeus (θέμιστας πρὸς Διὸς, thémistas pròs Diòs). Since the
agora was the open area in which men proclaimed their statements (as can
be seen in the verb ἀγορεύειν, agoreúein, ‘to give a speech’), and this abil-
ity to judge may imply telling the truth or lying, those kings who behaved
in an excessive manner, who issued unjust sentences, were frowned upon
by the angered gods. To pronounce crooked decisions meant, in short, to
advocate for a lack of truth and thus represented a disruption of the magi-
cal-religious continuity that pervaded the archaic vision of truth-telling as a
result of endorsing the will of the gods. Human rulers, through their speech,
were therefore able to alter the will of Zeus. They could behave incorrectly,
breaking the inherent link between justice and truth, hence endorsing cor-
rupted decisions. When judging according to their own interests or lying to
the people, they could walk away from the path of divine justice.
Another passage in the Iliad is relevant to complement these reflec-
tions. When Achilles’ shield is depicted in Book XVIII, the poem mentions
the representation of two cities in the centre, one in peace and the other be-
sieged by enemies. In the first of the two póleis, the daily scenes that were
crafted by Hephaestus are described in detail: on the one hand, weddings
and parties; on the other hand, a judicial process mentioned in the follow-
ing terms (Iliad XVIII.497-508):
λαοὶ δ᾽ εἰν ἀγορῇ ἔσαν ἀθρόοι· ἔνθα δὲ νεῖκος
ὠρώρει, δύο δ᾽ ἄνδρες ἐνείκεον εἵνεκα ποινῆς
ἀνδρὸς ἀποφθιμένου· ὃ μὲν εὔχετο πάντ᾽ ἀποδοῦναι
12
Already in epic poetry, the agora constituted the place in which justice was administered
and quarrels among litigants were dealt with: ἦμος δ ἐπὶ δόρπον ἀνὴρ ἀγορῆθεν ἀνέστη /
κρίνων νείκεα πολλὰ δικαζομένων αἰζηῶν, / τῆμος δὴ τά γε δοῦρα Χαρύβδιος ἐξεφαάνθη
(Odyssey, XII.439-441). This explains, for example, the opposition between the civilized
world of the Greeks and the land of the Cyclops, which lacked an agora to hold councils and
implement rules from the gods (τοῖσιν δ᾽ οὔτ᾽ ἀγοραὶ βουληφόροι οὔτε θέμιστες, Odyssey
IX.112). Few verses later, in the same book, Polyphemus himself was presented by similar
expressions as a savage, ignorant of judicial processes and norms: ἄγριον, οὔτε δίκας εὖ
εἰδότα οὔτε θέμιστας (Odyssey IX.215).

δήμῳ πιφαύσκων, ὃ δ᾽ ἀναίνετο μηδὲν ἑλέσθαι·

ἄμφω δ᾽ ἱέσθην ἐπὶ ἴστορι πεῖραρ ἑλέσθαι.
λαοὶ δ᾽ ἀμφοτέροισιν ἐπήπυον ἀμφὶς ἀρωγοί·
κήρυκες δ᾽ ἄρα λαὸν ἐρήτυον· οἳ δὲ γέροντες
εἵατ᾽ ἐπὶ ξεστοῖσι λίθοις ἱερῷ ἐνὶ κύκλῳ,
σκῆπτρα δὲ κηρύκων ἐν χέρσ᾽ ἔχον ἠεροφώνων·
τοῖσιν ἔπειτ᾽ ἤϊσσον, ἀμοιβηδὶς δ᾽ ἐδίκαζον.
κεῖτο δ᾽ ἄρ᾽ ἐν μέσσοισι δύω χρυσοῖο τάλαντα,
τῷ δόμεν ὃς μετὰ τοῖσι δίκην ἰθύντατα εἴποι.
Meanwhile the people were gathered in assembly, for there
was a quarrel, and two men were wrangling about the blood-
price for a man who had died, the one claiming to the dêmos
that he had the right to pay off the damages in full, and the
other refusing to accept anything. Each was seeking a limit, in
the presence of an arbitrator (hístor), and the people took sides,
each man backing the side that he had taken; but the heralds
kept them back, and the elders sat on their seats of stone in a
solemn circle, holding the staves which the heralds had put in-
to their hands. Then they rose and each in his turn gave judg-
ment, and there were two measures of gold laid down, to be
given to him whose judgment should be deemed the fairest.
In the context of an epic which is seldom concerned with the practice
of institutional justice, 13 this scene depicted corresponds to a murder trial,
in which two litigants plead over different modes of reparation. Interesting-
ly enough, the judgment in this case did not rely on a powerful king but
rather on a number of elders who voted individually. 14 The interpretations
of the judicial episode have been varied. 15 For the purposes of our reading,
13
The legal references are in general more related to the values of private justice, based on
retribution and redress. See Robert J. Bonner, “Administration of justice in the age of
Homer” in Classical Philology, 1911, no. 6, pp. 12–36; Eva Cantarella, “Private revenge and
public justice: the settlement of disputes in Homer’s Iliad”, in Punishment and Society, 2001,
no. 3, pp. 473–483. The moral aspects of these legal allusions have been studied in two
monographs by Arthur W. H. Adkins: Merit and responsibility: A study in Greek values, Ox-
ford University Press, Oxford, 1960, and Moral values and political behaviour in ancient
Greece: from Homer to the end of the fifth century, Chatto & Windus, New York, 1972.
14
On these two models of justice, see Eva Cantarella, “Modelli giurisdizionali omerici: il
giudice unico, la giustizia dei vecchi”, in Gerhard Thür and Eva Cantarella (eds.) Symposion
1997 (Akten der Gesellschaft für griechische und hellenistische Rechtsgeschichte, vol. 13),
Böhlau Verlag, Köln, Weimar and Wien, 2001, pp. 3–19.
15
The judicial image included in the shield has been the object of different interpretations
across the decades. See Hans J. Wolff, “The Origin of Judicial Litigation among the Greeks”,
in Traditio, 1946, no. 4, pp. 31–87; H. Hommel, “Die Gerichtsszene auf dem Schield des

however, it is simply worth noting the similarities between the description

of the passage and the simile described above. Also located in the agora
(εἰν ἀγορῇ), the image presupposes a group of elders (γέροντες, gérontes)
who resolve the dispute in a typically sacred environment (ἱερῷ ἐνὶ κύκλῳ,
hierôi ení kýkloi). 16 In that sense, it is possible to uphold that the decision
regarding the legal solution of the matter could be explained within a sys-
tem marked by the legal authority of the divinities and by a judicial role in
which ritual formulae became important to validate law. Nevertheless, an
award was granted to that old man who gave the fairest judgment. This is
significant, since it shows that, in pre-classical Greece, human judgments
could be valued differently. As explained when discussing the crooked ver-
dicts sanctioned by Zeus’ wrath in Book XVI, judges here are said to be
able either to take fair decisions or to uphold unfair verdicts. The opposi-
tion between ‘straight’ and ‘crooked’ decisions, between correct and incor-
rect judgments, seems to suggest that, already in early Greek times, abso-
lute values collided with a more relative approach: human behaviour could
either follow the right path of superior orders or respond to personal inter-
ests instead.
In Works and Days, Hesiod reproduces a similar line of thought. 17 In
vv. 37-39, he claims to have invited his brother to settle his controversies
Achilleus. Zur Pflege des Rechts in homerischer Zeit”, in Peter Steinmetz (ed.), Politeia und
Res Publica. Beiträge zum Verständnis von Politik, Recht und Staat in der Antike, dem An-
denken Rudolf Starks gewidmet, Franz Steiner, Wiesbaden, 1969, pp. 11–38; Gerhard Thür,
“Zum dikazein bei Homer”, in Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, 1979,
no. 87, pp. 426–44; Øivind Andersen, “Some thoughts on the shield of Achilleus”, in Sym-
bolae Osloenses, 1976, no. 51, pp. 5–18; Raymond Westbrook, “The Trial Scene in the Ili-
ad”, in Harvard Studies in Classical Philology, 1992, no. 94, pp. 53–76; Eva Cantarella,
“Dispute Settlement in Homer: Once Again on the Shield of Achilles”, in Droits antiques et
société. Mélanges en l'honneur de Panayotis D. Dimakis, Sakkoulas, Athènes, 2002,
pp. 147–164; Henri van Effenterre, “Un mort parle toujours”, in Gerhard Thür and Francisco
Javier Fernández Nieto (eds.), Symposion 1999 (Akten der Gesellschaft für griechische und
hellenistische Rechtsgeschichte, vol. 14), Böhlau Verlag, Köln, Weimar and Wien, 2003,
pp. 21–26; Giuseppe Lentini, “La scena giudiziaria dello Scudo di Achille e l'immaginario
della giustizia nella Grecia arcaica”, in Materiali e Discussioni per l'analisi dei testi classici,
2016, no. 76, pp. 15–31; Sima Avramovic, “Blood money in Homer – Role of istor in the
trial scene on the shield of Achilles (Il. 18.497-508)”, in Zbornik PFZ 67/5, 2017, pp. 723–
756.
16
On the figure of these old kings, see Pierre Carlier, “Les basileis homériques sont-ils des
rois?”, in Ktèma, 1996, no. 21, pp. 5–22.
17
Michael Gagarin, “The Poetry of Justice: Hesiod and the Origins of Greek Law”, in Ramus,
1992, no. 21, pp. 61–78. See also Michael Gagarin, “Dikē in the Works and Days”, in Clas-

with straight sentences (ἰθείῃσι δίκῃς) which, coming from Zeus, were the
best (αἵ τ’ ἐκ Διός εἰσιν ἄρισται). Among men there were corrupt judges –
considered as “devourers of gifts” (δωροφάγους) – who were willing to
make a decision (οἳ τήνδε δίκην ἐθέλουσι δίκασσαι) after being flattered.
These outraged Dike when they sentenced in a crooked way (τῆς δὲ Δίκης
ῥόθος ἑλκομένης, ᾗ κ ἄνδρες ἄγωσι / δωροφάγοι, σκολιῇς δὲ δίκῃς κρίνωσι
θέμιστας, vv. 220-221), whereas good rulers gave fair sentences to foreign-
ers and allowed the city to prosper and the people to flourish (Οἳ δὲ δίκας
ξείνοισι καὶ ἐνδήμοισι διδοῦσιν / ἰθείας καὶ μή τι παρεκβαίνουσι δικαίου, /
τοῖσι τέθηλε πόλις, λαοὶ δ ἀνθεῦσιν ἐν αὐτῇ, vv. 225-227). This distortion,
as Hesiod seems to confirm, had clear political effects. 18 Contrary to what
happened in the past, during the new iron age, evil people would forget
about truth and pronounce false oaths in a crooked manner (vv. 190-194):
οὐδέ τις εὐόρκου χάρις ἔσσεται οὔτε δικαίου
οὔτ᾽ ἀγαθοῦ, μᾶλλον δὲ κακῶν ῥεκτῆρα καὶ ὕβριν
ἀνέρες αἰνήσουσι· δίκη δ᾽ ἐν χερσί· καὶ αἰδὼς
οὐκ ἔσται, βλάψει δ᾽ ὁ κακὸς τὸν ἀρείονα φῶτα
μύθοισιν σκολιοῖς ἐνέπων, ἐπὶ δ᾽ ὅρκον ὀμεῖται.
There will be no favour for the man who keeps his oath or for
the just or for the good; but rather men will praise the evil-
doer and his violent dealing. Strength will be right, and rever-
ence will cease to be; and the wicked will hurt the worthy man,
speaking crooked words against him, and will swear an oath
upon them.
The corrosive effects of wrongful acts were a symbol of political de-
terioration. Overcoming the idea that archaic values were endorsed by ab-
solute principles derived from the authority of gods – as suggested by Mar-
cel Detienne – a relativistic opposition rather implied the acknowledgment
of moral limits in human behaviour. The corrupt intervention of judges and
sical Philology, 1973, no. 68, pp. 81–94; Robert J. Bonner, “Administration of justice in the
age of Hesiod”, in Classical Philology, 1912, no. 7, pp. 17–23.
18
Daniel Malamis, “Crimes of the Agora: Corruption in Homer and Hesiod”, in Philip Bosman
(ed.), Corruption and Integrity in Ancient Greece and Rome, Classical Association of South
Africa, Pretoria, 2012, pp. 17–29, identifies in this Homeric and Hesiodic passages a refer-
ence to political degradation, what he calls “institutional corruption”: “Institutional corrup-
tion may then take the form of advice within a deliberative council that should operate in the
community’s interest, but advice that actually promotes the interest of the adviser, either be-
cause it is personally beneficial or because the council member in question has been bribed”
(p. 22).

rulers did not only generate the fury of the Olympians, but also the rejec-
tion of those poets who supported communal solidarity and fairness. This
axiomatic system set the ground for the endorsement of a politics of integ-
rity, which held physical rectitude and moral righteousness as positive so-
cial values both in classical Greek and ancient Rome.
1.3. Recreating Integrity in Classical Athens
Rude, lewd and bad-mannered, Thersites is said to have disturbed the as-
sembly of the Achaean army in Book II of the Iliad (II.211-218):
ἄλλοι μέν ῥ᾽ ἕζοντο, ἐρήτυθεν δὲ καθ᾽ ἕδρας·
Θερσίτης δ᾽ ἔτι μοῦνος ἀμετροεπὴς ἐκολῴα,
ὃς ἔπεα φρεσὶν ᾗσιν ἄκοσμά τε πολλά τε ᾔδη
μάψ, ἀτὰρ οὐ κατὰ κόσμον, ἐριζέμεναι βασιλεῦσιν,
ἀλλ᾽ ὅ τι οἱ εἴσαιτο γελοίϊον Ἀργείοισιν
ἔμμεναι· αἴσχιστος δὲ ἀνὴρ ὑπὸ Ἴλιον ἦλθε·
φολκὸς ἔην, χωλὸς δ᾽ ἕτερον πόδα· τὼ δέ οἱ ὤμω
κυρτὼ ἐπὶ στῆθος συνοχωκότε· αὐτὰρ ὕπερθε
φοξὸς ἔην κεφαλήν, ψεδνὴ δ᾽ ἐπενήνοθε λάχνη.
The rest now took their seats and kept to their own several
places, but Thersites still went on wagging his unbridled
tongue – a man of many words, and those unseemly; a monger
of sedition, a railer against all who were in authority, who
cared not what he said, so that he might set the Achaeans in a
laugh. He was the ugliest man of all those that came before
Troy – bandy-legged, lame of one foot, with his two shoulders
rounded and hunched over his chest. His head ran up to a
point, but there was little hair on the top of it.
Unlike the rest of the Greek warriors, Thersites is described as bow-
legged and lame, a grotesque figure of wickedness. His shoulders are caved
inward, and his head is covered with few hairs. 19 When he launches an
abusive attack against Agamemnon in the assembly (II.225-242), he is
called greedy and coward. His physical representation was therefore cou-
pled with moral depravation. Not surprisingly, he is the only one in the pas-
sage to lack a patronymic. 20
19
On his poor bodily condition and the possible puns intended in the Iliad, see R. Clinton
Simms, “The Missing Bones of Thersites: A Note on Iliad 2.212-19”, in American Journal
of Philology, 2005, no. 126, pp. 33–40
20
Andrea Kouklanakis, “Thersites, Odysseus, and the Social Order”, in Miriam Carlisle and
Olga Levaniouk (eds.), Nine Essays on Homer, Rowman & Littlefield, Lanham, 1999, p. 40.

Some centuries later, Greek sources would rely again on this physical
and moral construction of characters as an efficient rhetorical technique.
Through the technique of ethopoíia, for example, forensic speechwriters
such as Lysias delineated personalities, opposing their own clients, por-
trayed as pure and undamaged, to their rivals, constantly presented as ethi-
cally corrupted. If speakers endorsed moral qualities, such as altruism and
integrity, the disposition of their bodies corresponded to required upright-
ness, as opposed to crookedness presented in their corrupt and perverse en-
emies in court.
The symbolic value of body language in communication deserves
special attention. 21 Gestures such as the position of hands, the inclination
of the head, and the movement of the eyes are significant ways of express-
ing intention, and can therefore transmit relevant evidence on attitudes. 22 A
number of recent contributions have attempted to offer some insights into
the role of gestures and their meaning in classical civilizations. 23 However,
in spite of the obvious political character of gestures as a means of express-
ing personal relationships within a society, the relevance of gestures has
also been neglected in the study of judicial administration, due again to the
See Norman Postlethwaite, “Tersites in the Iliad”, in Greece and Rome, 1992, no. 35,
pp. 123–136.
21
See Pierre Guiraud, Le langage du corps, Presses Universitaires de France, Paris, 1980.
22
According to Keith Thomas, “Introduction”, in Jan Bremmer and Herman Roodenburg
(eds.), A Cultural History of Gesture. From Antiquity to the Present Day, Polity Press, Cam-
bridge, 1991, p. 1, gestures include any kind of bodily movement or posture (including faci-
al expression), which transmits a message to the observer. This definition seems to presup-
pose the existence of at least two bodies interacting with each other: one of them performing
the gesture, and the second one decoding its explicit or implicit significance. On the cultural
importance of gesture and its relationship to speech, see Adam Kendon, “Gesture”, in Annu-
al Review of Anthropology, 1997, no. 26, pp. 109–128. Gerhard Neumann, Gesten und Ge-
bärden in der griechischen Kunst, Walter de Gruyter, Berlin and Boston, 1965, pp. 10–12,
uses the expression “rhetorische Geste” to indicate the “geformte und schalgkräftig pointier-
te Geste”. According to Carolin Hahnemann, “A Gesture in Archilochus 118 (West)?”, in
Geoffrey W. Bakewell and James P. Sickinger (eds.), Gestures. Essays in Ancient History,
Literature and Philosophy presented to Alan L. Boegehold on the occasion of his retirement
and his 75th birthday, Oxbow, Oxford, 2003, p. 55, rhetorical gestures include any motion of
head and hand that accompany a speech-act. These gestures will be relevant in the context of
legal proceedings.
23
Anthony Corbeill, Nature Embodied. Gestures in Ancient Rome, Princeton University Press,
Princeton and Oxford, 2004, and Douglas L. Cairns, “Introduction”, in Douglas L. Cairns
(ed.) Body Language in the Greek and Roman Worlds, Classical Press of Wales, Swansea,
2015, pp. ix-xxii.

biased nature of our sources. 24 I argue that, both in Greek and Roman
sources, the information that can be obtained from the identification and
observation of different gestures and corporal postures can greatly contrib-
ute to the ancient perception of integrity in public fora.
Aristotle discussed the symbolic value arising from the difference be-
tween straight and crooked bodies. In his Politics, the unbent body repre-
sents the ideal physical support of the male citizen, whereas crooked or
curve figures are deemed useless for civic activities, and become therefore
associated to slaves (1254b 27-31):
βούλεται μὲν οὖν ἡ φύσις καὶ τὰ σώματα διαφέροντα ποιεῖν
τὰ τῶν ἐλευθέρων καὶ τῶν δούλων, τὰ μὲν ἰσχυρὰ πρὸς τὴν
ἀναγκαίαν χρῆσιν, τὰ δ' ὀρθὰ καὶ ἄχρηστα πρὸς τὰς τοιαύτας
ἐργασίας, ἀλλὰ χρήσιμα πρὸς πολιτικὸν βίον.
The intention of nature therefore is to make the bodies also of
freemen and of slaves different – the latter strong for neces-
sary service, the former erect and unserviceable for such oc-
cupations, but serviceable for a life of citizenship. 25
Bodies which were erect (ὀρθὰ, orthá) seemed prepared for a life de-
voted to the pólis. Body language helps to understand the relationship be-
tween social status and physical disposition, since curved anatomies meant
submission as opposed to self-sufficiency and autonomy. 26
24
An interesting contribution by Anthony Corbeill, “Gesture in Early Roman Law: Empty
Forms or Essential Formalities?”, in Cairns, 2015, pp. 157–171, see above note 23, has dis-
cussed the importance of gesture and body contact in early Roman law considering that, far
from being symbolic adjuncts, they were truly constitutive elements of some legal processes.
Another exception is the recent book by Peter A. O’Connell, The Rhetoric of Seeing in Attic
Forensic Oratory, The University of Texas Press, Austin, 2017, which, although focused on
the importance of sight, refers to the relevance of non-verbal expressions and physical
movements in classical Greek forensic oratory.
25
The Greek text corresponds to W.D. Ross (ed.), Aristotle. Politica, Clarendon Press, Oxford,
1957. The translation has been taken from H. Rackham (ed.), Aristotle, vol. 21, Harvard
University Press and William Heinemann, Cambridge (MA) and London, 1944.
26
On the difference between “normal” and “deviant” bodies in antiquity and its relationship to
social values, see also Christopher Goody and Martha Lynn Rose, “Mental states, bodily
dispositions and table manners: a guide to reading ‘intellectual’ disability from Homer to
late antiquity”, in Christian Laes, Christopher Goodey and Martha Lynn Rose (eds.), Disa-
bilities in Roman Antiquity: Disparate Bodies; a Capite ad Calcem, Brill, Leiden and Bos-
ton, 2013, pp. 17–44. On the deformed and disabled body and its figured “otherness”, see
more recently Lisa Trentin, The Hunchback in Hellenistic and Roman Art, Bloomsbury,
London, 2015.

According to Aristotle’s On the Parts of Animals, human beings were

the only creatures with straight bodies: μόνον γὰρ ὀρθόν ἐστι τῶν ζῴων
ἄνθρωπος (656a 12-13). In his Timaeus, Plato had considered already that
an “upright” attitude is a consequence of the human attempt to reach the
gods (τὸ θεῖον τὴν κεφαλὴν καὶ ῥίζαν ἡμῶν ἀνακρεμαννὺν ὀρθοῖ πᾶν τὸ
σῶμα, 90b1), whereas wild animals had curved bodies because they
dragged their front limbs and their head down to the earth (ἐκ τούτων οὖν
τῶν ἐπιτηδευμάτων τά τ' ἐμπρόσθια κῶλα καὶ τὰς κεφαλὰς εἰς γῆν
ἑλκόμενα ὑπὸ συγγενείας ἤρεισαν, 91e 6-8).
The opposition between straight and curved bodies is not only rele-
vant in biological and political terms, but also with regard to judicial activi-
ties. It materially reproduces the difference between rightness and corrup-
tion, which archaic sources attributed to judicial decision-making, helping
to understand the physical and moral logics behind ancient ‘integrity’. We
should bear in mind that, in Aristotle’s Republic, office-holders had a duty
to govern with a view to the public interest. Political regimes aimed at pro-
tecting private interests were considered to be “deviations” (παρεκβάσεις,
parekbáseis, 1279b 5) instead. 27 In Aristotle and elsewhere, the vocabulary
of rectitude and crookedness was employed to address the problems arising
from political ‘integrity’.
An example from Athenian comedy can shed light on how bodily at-
titudes represent ethical qualities. In Aristophanes’ Wasps – a comedy fo-
cused on the administration of justice in popular tribunals – the main char-
acter, Philocleon, was depicted as hard and stiff when dreaming of becom-
ing a judge every day, in opposition to the softness of those defendants who
would try to convince him of acquitting them through mercy and compas-
sion. In the protagonist’s own words, his corporal attitude of walking
straight into the courtroom had to be contrasted to the womanly gestures of
the litigants: “As I walk past, one of them places his soft hand in mine”
(κἄπειτ᾽ εὐθὺς προσιόντι / ἐμβάλλει μοι τὴν χεῖρ᾽ ἁπαλὴν, vv. 552-553). 28
27
The overlapping of personal economic motives and public interests was frequently seen as a
symbol of corrupt behavior. See Barry Strauss, “The Cultural Significance of Bribery and
Embezzlement in Athenian Politics: The Evidence of the Period 403–386 B.C.”, in The An-
cient World, 1985, no. 11, p. 73.
28
The Greek text of the play corresponds to the edition of Zachary P. Biles and S. Douglas
Olson (eds.), Aristophanes. Wasps, Oxford University Press, Oxford, 2015. Translations are
taken from Alan H. Sommerstein (ed.), The Comedies of Aristophanes, vol. 4. Wasps, Aris &
Phillips, Warminster, 1983.

Such a representation of legal relationships on the dramatic stage can

illustrate the direct correspondence between straight bodies and a claim for
honest conduct. 29 It is well known that reciprocal positions and distance
between bodies are indicative of the intentions of those who interact. 30 In a
proxemic analysis, what Philocleon acknowledged is that his body got in
contact with the bodies of the defendants, but this touching experience was
not described as an interaction between equals, as it could be expected in
physical contact between citizens. Whereas he stood up, the defendants
bent in front of him and begged after fawning and crawling: “they bow
down and supplicate me” (ἱκετεύουσίv θ’ ὑποκύπτοντες, v. 559). The parti-
ciple ὑποκύπτοντες (hypokýptontes, v. 555), ‘bowing down’, shows the dis-
tance between the superiority of the juror and the humility of the beggars. 31
A physiognomic interpretation of this antithesis pays attention to the
corporal representation of jurors and offenders at court. 32 The opposition
between a body that stands, keeps firm and looks down, on the one hand,
and a soft body that twists and curves, on the other, reproduces the legal
inequality that Aristophanes is fond of criticizing in judicial interactions.
Far away from isonomía, an equality of looks, in Philocleon’s perception
his straight attitude of superiority was clearly different from the crooked
bodies of the pleaders. While he was “like a Zeus”, flashing verdicts as a
lightning from above, the accused bent and shook in fear (vv. 619-627):
ἆρ᾽ οὐ μεγάλην ἀρχὴν ἄρχω καὶ τοῦ Διὸς οὐδὲν ἐλάττω, ὅστις
ἀκούω ταὔθ᾽ ἅπερ ὁ Ζεύς;
ἢν γοῦν ἡμεῖς θορυβήσωμεν,
29
Mariel Vázquez, “ʻCuerpos curvados’ en Asambleístas de Aristófanes: la postura corporal y
sus implicancias biológico-políticas”, in Alicia Atienza, Emiliano J. Buis and Elsa Rodrí-
guez Cidre (eds.), Anatomías poéticas. Pliegues y despliegues del cuerpo en el mundo grie-
go antiguo (Colección Saberes), Editorial de la Facultad de Filosofía y Letras de la UBA,
Buenos Aires, 2020, pp. 205–232, has recently worked on the political implications of the
female image of crooked bodies in Aristophanes’ Ecclesiazusae.
30
Guiraud, 1980, see above note 21, considers that the interpretation of this connection of
bodies is part of proxemics, since it is related to the physical communication between people
in a specific spatial environment.
31
Biles and Olson, 2015, p. 259, see above note 28. On this verb, see Diphilus fr. 42, 23-24
and Herodotus 1.130.1, 6.25.2 and 109.3.
32
Jon Hesk, “The Rhetoric of Anti-rhetoric in Athenian oratory”, in Simon Goldhill and Robin
Osborne (eds.), Performance Culture and Athenian Democracy, Cambridge University Press,
Cambridge, 1999, pp. 220–226, has coined the expression ‘physiognomic interpretation’ in
order to describe the ways in which orators matched some physical traits to specific charac-
ter types in their speeches.

πᾶς τίς φησιν τῶν παριόντων·

“οἷον βροντᾷ τὸ δικαστήριον,
ὦ Ζεῦ βασιλεῦ.” κἂν ἀστράψω,
ποππύζουσιν κἀγκεχόδασίν μ᾽
οἱ πλουτοῦντες καὶ πάνυ σεμνοί.
Do I not wield great power, in no way inferior to that of
Zeus – seeing that the same things are said of Zeus and of me?
For example, if we get noisy, every passer-by says: “What a
thunder’s coming from the court! Lord Zeus!” and if I make
lightning, the rich and the very grand all cluck and defecate in
their clouds from fear of me.
However, Philocleon’s son Bdelycleon would soon try to prove his
father wrong. When explaining to him that he was in fact a δοῦλος (doûlos,
‘slave’), and not a king, Bdelycleon criticized the relationship between ju-
rors and demagogues and compared it to the treatment of masters and
slaves (vv. 515-517):
καταγελώμενος μὲν οὖν
οὐκ ἐπαϊεις ὑπ᾽ ἀνδρῶν, οὓς σὺ μόνον οὐ προσκυνεῖς.
ἀλλὰ δουλεύων λέληθας.
More than that, you don’t understand that you’re being made a
fool of by men whom you all but worship. You’re a slave, and
you’re not aware of it.
The verb used here to indicate the superiority of politicians,
προσκυνεῖς (proskyneîs), referred to proskýnesis, a form of veneration in-
volving abasement by prostration and hand gestures which was frequent in
prayers to the gods. It was a gesture which, when applied to human beings
who bent their knees in front of other individuals, resulted in an inadequate
submission which would not be considered appropriate among decent citi-
zens. Curving the body in front of another polítes would imply affecting
one’s own τιμή (timé, ‘honour’).
The antithesis between upright and twisted positions of the body
served as an efficient way of denouncing the inequality of litigants and ju-
rors. This breakup repudiated what should be considered an ideal demo-
cratic balance of those who were involved in civic activities. The ways in
which bodies were presented provide us with interesting information on the
relationship between accusers and defendants and between litigants and
jurors. A study of their corporal language allows us to discover their per-
ceptions of the other and their subjective modes of dealing with adversaries.

Taking advantage of the importance of visual representation in the comic

scene, the physicality of the movements of the actors on stage, and their
body-to-body contact, reveal a lot about the material dynamics of judicial
procedure in classical Athens and about the complex nature of integrity, as
opposed to ruin and corruption.
In forensic oratory, a frequent rhetorical technique consisted of de-
noting the construction (or simulation) of character in discourse, delineat-
ing personality on the basis of reputation and the importance of public im-
age. In Athenian forensic discourse, accusing the enemy of being a traitor, a
turncoat and a liar, meant placing him out of the limits of socially accepted
behaviour. Showing the defendants as untrustworthy, impious, and greedy,
was a way of presenting them “in the worst light possible”. 33 In that sense,
the self-construction of the speaker as upholding the common values of the
pólis depended on the presentation of positive virtues that could relate to
our modern concept of integrity.
Whereas the speaker was always portrayed as undamaged by decay,
embodying a standard of high moral character, his rival was portrayed as
ruined, characterized by a damaged reputation and a lack of ethical values.
This was the case of Aeschines’ depiction of Timarchus, who was presented
not just as morally dissolute – that is, as a male prostitute – but as physical-
ly dissipated too (1.26):
ἐκεῖνοι μέν γε ᾐσχύνοντο ἔξωτὴν χεῖρα ἔχοντες λέγειν, οὑτοσὶ
δὲ οὐ πάλαι, ἀλλὰ πρώην ποτὲ ῥίψας θοἰμάτιον γυμνὸς
ἐπαγκρατίαζεν ἐν τῇ ἐκκλησίᾳ, οὕτω κακῶς καὶ αἰσχρῶς
διακείμενος τὸ σῶμα ὑπὸ μέθης καὶ βδελυρίας, ὥστε τούς γε
εὖ φρονοῦντας ἐγκαλύψασθαι, αἰσχυνθέντας ὑπὲρ τῆς πόλεως,
εἰ τοιούτοις συμβούλοις χρώμεθα.
They [the citizens] were too modest to speak with the arm
outside the cloak, but this man not long ago, yes, only the oth-
er day, in an assembly of the people threw off his cloak and
leaped about like a gymnast, half naked, his body so reduced
and befouled through drunkenness and lewdness that right-
33
Claire Taylor, “Corruption and Anticorruption in Democratic Athens”, in Ronald Kroeze,
André Vitória and Guy Geltner (eds.), Anti-corruption in History: From Antiquity to the
Modern Era, Oxford University Press, Oxford, 2017, pp. 21–33, at p. 29.

minded men, at least, covered their eyes, being ashamed for

the city, that we should let such men as he be our advisers. 34
Showing the rightness and closeness of a standing body, as opposed
to those bodies which are seen naked or dancing, meant praising the moral
quality of a person who appeared to take decisions or actions with the pur-
pose of defending the values of the city against self-interest. 35
At the crossroad between bodily posture and moral reliability, the
words in ancient Greek terms indicating aspects which could be related to
our concept of integrity included χρηστότης (khrestótes), “uprightness,
honesty”; σωφροσύνη (sophrosýne), “self-mastery”; ἀφελεία (apheleía),
“simplicity”, and especially ἀκεραιότης (akeraiótes), “intactness, purity”.
In a (typically Greek) system of lexical oppositions, terms related to cor-
ruption embraced nouns such as μοχθηρία (mokhtería), “depravity”;
δωροδοκία (dorodokía): “corruption”; and verbs such as διαφθείρειν (di-
aphteírein), “to utterly destroy”, and λωβᾶσθαι (lobâsthai), “to
harm/seduce”. 36
In short, this antithetical political perspective, based on the distance
between corruption and uprightness, was rhetorically built upon both phys-
ical and moral considerations (see Graph 1 below). Whereas purity and
wholeness were validated as positive notions, putrefaction and degenera-
tion identified decadent and unscrupulous men. In moral terms, this was
perceived as the antagonism between guilt and innocence, depravity and
honesty, lies and truth.
34
The Greek text and its translation are taken from Charles Darwin Adams (ed.), Aeschines,
Harvard University Press and William Heinemann, Cambridge (MA) and London, 1919.
35
Philip Bosman, “Corruption and Integrity: A Survey of the Ancient Terms”, in Bosman,
2012, p. 2, see above note 18.
36
Bosman, 2012, pp. 5–6 and 10-14, see above note 18. On the legal and political implications
of these terms, see Mark Philp, “Defining Political Corruption”, in Political Studies, 1997,
no. 45, pp. 436–62, at p. 442; F. David Harvey, “Dona Ferentes: Some Aspects of Bribery in
Greek Politics”, in History of Political Thought, 1985, no. 6, pp. 76–117, at p. 105, and Lisa
Hill, “Conceptions of Political Corruption in Antiquity”, in History of Political Thought,
2013, no. 34, at pp. 567–568.

Crooked Straight
Self-
Altruism
interest
Antithetical
Corruption “political” Integrity
perspective
Putrefaction, degeneration, Purity, wholeness,
decay, deterioration, completenesss,
contamination uncorruptibility
Physical
Moral
Guilt, depravity, perversion, Innocence, honesty,
lying sincerity, truth, uprightness
Graph 1: The antithetical ‘political’ perspective of ‘integrity’ in antiquity.
Defective individuals and degenerated political regimes went togeth-

37
er. This is the reason why the appeal to democratic values was so im-
portant in political and forensic oratory – it aimed to create a closer con-
nection between the speaker and the δῆμος (dêmos, ‘the people’). The ora-
tor Aeschines, for instance, described the perfect virtues of the democratic
citizen in a passage of his speech Against Ctesiphon. By contrast to an oli-
garch, the admirable polítes ought to be a man of good judgment, who
would be able to serve the Athenian people wholeheartedly, without any
personal bias or interest (3.169-170):
οἶμαι τοίνυν ἅπαντας ἂν ὑμᾶς ὁμολογῆσαι τάδε δεῖν ὑπάρξαι
τῷ δημοτικῷ, πρῶτον μὲν ἐλεύθερον εἶναι καὶ πρὸς πατρὸς
καὶ πρὸς μητρός, ἵνα μὴ διὰ τὴν περὶ τὸ γένος ἀτυχίαν
δυσμενὴς ᾖ τοῖς νόμοις, οἳ σῴζουσι τὴν δημοκρατίαν,
δεύτερον δ᾽ ἀπὸ τῶν προγόνων εὐεργεσίαν τινὰ αὐτῷ πρὸς
τὸν δῆμον ὑπάρχειν, ἢ τό γ᾽ ἀναγκαιότατον μηδεμίαν ἔχθραν,
ἵνα μὴ βοηθῶν τοῖς τῶν προγόνων ἀτυχήμασι κακῶς ἐπιχειρῇ
37
William J. Prior, Virtue and Knowledge: An Introduction to Ancient Greek Ethics, Routledge,
New York and London, 2016 [1991], pp. 261–275.

ποιεῖν τὴν πόλιν. τρίτον σώφρονα καὶ μέτριον χρὴ πεφυκέναι

αὐτὸν πρὸς τὴν καθ᾽ ἡμέραν δίαιταν, ὅπως μὴ διὰ τὴν
ἀσέλγειαν τῆς δαπάνης δωροδοκῇ κατὰ τοῦ δήμου. τέταρτον
εὐγνώμονα καὶ δυνατὸν εἰπεῖν· καλὸν γὰρ τὴν μὲν διάνοιαν
προαιρεῖσθαι τὰ βέλτιστα, τὴν δὲ παιδείαν τὴν τοῦ ῥήτορος
καὶ τὸν λόγον πείθειν τοὺς ἀκούοντας· εἰ δὲ μή, τήν γ᾽
εὐγνωμοσύνην ἀεὶ προτακτέον τοῦ λόγου. πέμπτον ἀνδρεῖον
εἶναι τὴν ψυχήν, ἵνα μὴ παρὰ τὰ δεινὰ καὶ τοὺς κινδύνους
ἐγκαταλίπῃ τὸν δῆμον.
I think you would all acknowledge that the following qualities
ought to be found in the “friend of the people”: in the first
place, he should be free-born, on both his father's and his
mother's side, lest because of misfortune of birth he be disloy-
al to the laws that preserve the democracy. In the second place,
he should have as a legacy from his ancestors some service
which they have done to the democracy, or at the very least
there must be no inherited enmity against it, lest in the attempt
to avenge the misfortunes of his family he undertake to injure
the city. Thirdly, he ought to be temperate and self-restrained
in his daily life, lest to support his wanton extravagance he
take bribes against the people. Fourthly, he ought to be a man
of good judgment and an able speaker; for it is well that his
discernment choose the wisest course, and his training in rhet-
oric and his eloquence persuade the hearers; but if he cannot
have both, good judgment is always to be preferred to elo-
quence of speech. Fifthly, he ought to be a man of brave heart,
that in danger and peril he may not desert the people. 38
A noble character constituted a proof of patriotism; it was a symbol
of self-conscious dedication to the political community. 39 Thus, when re-
sponding to Aeschines’ criticism, Demosthenes centred his speech On the
Crown around the description of his own private and public integrity: as
expected, he claimed to have lived up to the highest standards of self-
sacrifice and courage. In front of his fellow Athenians, he explained that he
38
The Greek text and the English translation correspond to the edition prepared by Charles
Darwin Adams, Aeschines, Harvard University Press and William Heinemann, Cambridge
(MA) and London, 1919.
39
Ryan K. Balot, “The Virtue Politics of Democratic Athens”, in Stephen Salkever (ed.) The
Cambridge Companion to Ancient Greek Political Thought, Cambridge University Press,
Cambridge, 2009, at pp. 284–285.

had always acted with zeal, loyalty, eagerness, generosity, and well-
informed rationality, in order to pursue the city’s welfare (18.62-71).
Together with the Assembly, the judicial arena was a crucial setting
in classical Athens, where citizens could display their virtuous characters
and show their normatively appropriate feelings in front of others. This was
the case of Socrates’ famous prosecution under the charges of impiety
(ἀσέβεια, asébeia) and corruption of the youth, maybe the best-known ex-
ample of the need for a philosopher to inform of his ethical integrity. Ac-
cording to Plato’s Apology, Socrates claimed to have acted in a proper way,
respecting both law and religion: μηδὲν ἄδικον μηδ ̓ ἀνόσιον ἐργάζεσθαι
(“I should do nothing wrong or contrary to the sacred”) (Apology 33c-d).
Interestingly, in Socrates’ words there was an insistence in the maintenance
of unity and harmony within the soul, a correspondence between word and
action which, again, implied that integrity could not only be achieved by a
mental disposition, but also involved tangible behaviour. 40 In the case of
Socrates, it has been stated that his integrity derived mainly from negativity,
since he departed from ignorance (instead of knowledge), and he knew
what injustice was (rather than what virtuous excellence was). 41 His integ-
rity only turned out to be positive when caring for others. 42 In this sense,
moral integrity was seen as an individual virtue related to a social envi-
ronment because of the effects it could produce on the rest of the citizens.
Socrates’ integrity also entailed the civic courage of opposing the Atheni-
ans when the dêmos decided to infringe the law. 43
Similar to comedy and forensic oratory, Athenian tragedy made fre-
quent allusions to this set of opposing core values as well. In ancient
Greece, in spite of the close nexus between corporal deportment and ethical
40
Bosman, 2012, pp. 9-10, see above note 18.
41
George Kateb, Patriotism and Other Mistakes, Yale University Press, New Haven, 2006,
p. 216.
42
Kateb, 2006, p. 241, see above note 41: “The whole image of Socrates as a model of intel-
lectual and moral integrity, as a supreme hero of self-denial and self-sacrifice, as a master of
negativity, needs one, if only one, positivity, and that must be a positive commitment to oth-
ers. He cared for them more than he cared for himself. He lived and died for them. He made
them his superiors by deeming them worthy of his self-sacrifice. But he did not think that
they were his equals, and this is precisely why he had to care for them and in the way that he
did”.
43
Claude Mossé, Le procès de Socrate. Un philosophe victim de la démocratie?, André Ver-
saille, Bruxelles, 2012, p. 69 argues that “Socrate demeurait fidèle à lui-même et à ses con-
victions, et n’hésitait pas à braver ceux dont les ordres lui paraissent injustes et contraires
aux lois”.

manners, tragedy presented examples in which the proximity of physical

beauty and moral carriage was compromised. In these exceptional cases, a
specific reference was made to the lack of balance between body and per-
sonality, as it happened in Euripides’ Orestes when a messenger on stage
described a good citizen, although bad-looking, as “manly uncorrupted”
(ἀκέραιος, akéraios) and well-behaved, far from censure or blame (vv. 919-
923):
μορφῇ μὲν οὐκ εὐωπός, ἀνδρεῖος δ᾽ ἀνήρ,
ὀλιγάκις ἄστυ κἀγορᾶς χραίνων κύκλον,
αὐτουργός – οἵπερ καὶ μόνοι σῴζουσι γῆν –
ξυνετὸς δέ, χωρεῖν ὁμόσε τοῖς λόγοις θέλων,
ἀκέραιος, ἀνεπίπληκτον ἠσκηκὼς βίον·
He was not physically good-looking but a manly man (an-
dreîos), one who rarely impinges on the town or the market
circle; a working farmer (it is these alone that ensure the
land’s survival), but intelligent, willing to come to grips with
the argument, uncorrupted (akéraios), self-disciplined to a life
above reproach (anepíplekton eskekòs bíon). 44
In the strict field of jurisdiction, for instance, straightness and correc-
tion also played a relevant role according to tragedy. In Aeschylus’ Eumen-
ides, for instance, the goddess Athena created the prestigious criminal tri-
bunal of the Areopagus for the Athenians, an unbiased court described as
“untouched by greed” (vv. 681-705):
κλύοιτ᾽ ἂν ἤδη θεσμόν, Ἀττικὸς λεώς,
πρώτας δίκας κρίνοντες αἵματος χυτοῦ.
ἔσται δὲ καὶ τὸ λοιπὸν Αἰγέως στρατῷ
αἰεὶ δικαστῶν τοῦτο βουλευτήριον.
πάγον δ᾽ Ἄρειον τόνδ᾽, Ἀμαζόνων ἕδραν
σκηνάς θ᾽, ὅτ᾽ ἦλθον Θησέως κατὰ φθόνον
στρατηλατοῦσαι, καὶ πόλιν νεόπτολιν
τήνδ᾽ ὑψίπυργον ἀντεπύργωσαν τότε,
Ἄρει δ᾽ ἔθυον, ἔνθεν ἔστ᾽ ἐπώνυμος
πέτρα, πάγος τ᾽ Ἄρειος· ἐν δὲ τῷ σέβας
ἀστῶν φόβος τε ξυγγενὴς τὸ μὴ ἀδικεῖν
σχήσει τό τ᾽ ἦμαρ καὶ κατ᾽ εὐφρόνην ὁμῶς,
αὐτῶν πολιτῶν μὴ 'πιχραινόντων νόμους
44
The Greek text is taken from Gilbert Murray, Euripidis Fabulae, vol. 3, Clarendon Press,
Oxford, 1913. The translation is taken from Martin L. West, Euripides. Orestes, Aris & Phil-
lips, Warminster, 1987.

κακαῖς ἐπιρροαῖσι· βορβόρῳ δ᾽ ὕδωρ

λαμπρὸν μιαίνων οὔποθ᾽ εὑρήσεις ποτόν.
τὸ μήτ᾽ ἄναρχον μήτε δεσποτούμενον
ἀστοῖς περιστέλλουσι βουλεύω σέβειν,
καὶ μὴ τὸ δεινὸν πᾶν πόλεως ἔξω βαλεῖν.
τίς γὰρ δεδοικὼς μηδὲν ἔνδικος βροτῶν;
τοιόνδε τοι ταρβοῦντες ἐνδίκως σέβας
ἔρυμά τε χώρας καὶ πόλεως σωτήριον
ἔχοιτ᾽ ἄν, οἷον οὔτις ἀνθρώπων ἔχει,
οὔτ᾽ ἐν Σκύθῃσιν οὔτε Πέλοπος ἐν τόποις.
κερδῶν ἄθικτον τοῦτο βουλευτήριον,
αἰδοῖον, ὀξύθυμον, εὑδόντων ὕπερ
ἐγρηγορὸς φρούρημα γῆς καθίσταμαι.
Hear now my ordinance, people of Attica, as you judge the
first trial for bloodshed. In the future, even as now, this court
of judges will always exist for the people of Aegeus. And this
Hill of Ares, the seat and camp of the Amazons, when they
came with an army in resentment against Theseus, and in
those days built up this new citadel with lofty towers to rival
his, and sacrificed to Ares, from which this rock takes its
name, the Hill of Ares: on this hill, the reverence of the citi-
zens, and fear, its kinsman, will hold them back from doing
wrong by day and night alike, so long as they themselves do
not pollute the laws with evil streams; if you stain clear water
with filth, you will never find a drink. Neither anarchy nor
tyranny – this I counsel my citizens to support and respect,
and not to drive fear wholly out of the city. For who among
mortals, if he fears nothing, is righteous? Stand in just awe of
such majesty, and you will have a defence for your land and
salvation of your city, such as no man has, either among the
Scythians or in Pelops’ realm. I establish this tribunal, un-
touched by greed (kerdôn áthikton […] bouleutérion), worthy
of reverence, quick to anger, awake on behalf of those who
sleep, a guardian of the land. 45
This founding myth of the Areopagus, which was presented as a
creation of Athena during the trial of Orestes for the crime of his mother,
exhibited the image of the tribunal as a place for veracity and honour. Its
judicial integrity pointed to moral uprightness and material inviolability,
45
The Greek text and its translation are taken from Herbert Weir Smyth (ed.), Aeschylus, vol. 2,
Eumenides, Harvard University Press, Cambrige (MA), 1926.

which seemed to complement the ethical rectitude of those who adminis-

tered justice. In the so-called “dikastic oath”, which was pronounced by
Athenian citizens before acting as jurors (δικασταί, dikastaí), relying on
favour or enmity was explicitly excluded when taking decisions, and it was
provided that both parties had to be listened on an equal footing during the
proceedings to guarantee a fair trial. A vote in accordance with “the most
equitable opinion” (γνώμη δικαιοτάτη, gnóme dikaiotáte) was also re-
quired. 46
The importance of upholding ethical standards was not only present-
ed in the judicial business of classical Greek cities. This is not surprising.
Medical integrity constituted an example, since the practice of medicine,
which also heavily influenced political thought, 47 was also subject to clear
patterns of rectitude and soundness, as suggested by the famous Hippocrat-
ic oath. Under this oath, new doctors were expected to recite the pledge to
promise to abstain from whatever was deleterious and mischievous, to re-
46
We do not have any ancient source transmitting the text of the oath. Nevertheless, following
possible reconstructions, it may well have included these provisions according to Alan H.
Sommerstein, “The Judicial Sphere”, in Alan H. Sommerstein and Andrew J. Bayliss, Oath
and State in Ancient Greece, Walter de Gruyter, Berlin and Boston, 2013, p. 79: “I will vote
according to the laws and decrees of the Athenian people and of the Council of Five Hun-
dred; and on matters about which there are no laws, I will vote according to the justest opin-
ion. And I will give an equal hearing both to the accuser and to the defendant, and I will cast
my vote upon the actual matter which is the subject of the charge. And I will not accept any
gift on account of my service as a juror, neither I nor any other man or woman with my
knowledge, by any means or device whatsoever. And I am not less than thirty years old. I
swear this by Apollo Patroios, Demeter, and Zeus the King; if I transgress any of these pro-
visions, then may I be utterly destroyed, myself and my house, but if I keep my oath may I
have many blessings”. The most famous reconstruction is owed to Max Fränkel, “Der at-
tische Heliasteneid”, in Hermes, 1878, no. 13, pp. 452–466, and has been extensively stud-
ied by David C. Mirhady, “The Dikast’s Oath and the Question of Fact”, in Alan H. Som-
merstein and Judith Fletcher (eds.), Horkos. The Oath in Greek Society, Liverpool Universi-
ty Press, Liverpool, 2008, pp. 49–51. On the nature of the dikastic oath under the light of Ar-
istotle’s Politics, see the recent contribution by Anders Dahl Sørensen, “Hippodamus of Mi-
letus and the Character of the Athenian Dikastic Oath (Arist. Pol. 2.8)”, in Greek, Roman,
and Byzantine Studies, 2018, no. 58, pp. 324–348.
47
See Giuseppe Cambiano, “Pathologie et analogie politique”, in François Lasserre and Phi-
lippe Mudry (eds.), Formes de pensée dans la Collection Hippocratique (Actes du IVe Col-
loque international hippocratique, Lausanne, 21-26 septembre 1981), Droz, Genève, 1983,
pp. 441–458. On the overlapping between medicine and politics, see also Roger Brock,
“Sickness in the body politic: medical imagery in the Greek polis”, in Valerie M. Hope and
Eireann Marshall (eds.), Death and Disease in the Ancient City, Routledge, London and
New York, 2000, pp. 24–34.

frain from giving deadly medicine to anyone if asked, and to abstain from
every voluntary act of mischief and corruption. 48
In sum, integrity was part of what a city would endorse as general
patterns of social behaviour in different professions and activities. This cor-
rectness also included intellectual pursuit, which was an activity related to
political performance as well. For example, moral considerations would be
attributed to virtuous historians many centuries later by Lucian, with a sim-
ilar vocabulary placing emphasis on integrity and rightness (How to write
History, 41):
τοιοῦτος οὖν μοι ὁ συγγραφεὺς ἔστω, ἄφοβος, ἀδέκαστος,
ἐλεύθερος, παρρησίας καὶ ἀληθείας φίλος […] οὐ μίσει οὐδὲ
φιλίᾳ τι νέμων οὐδὲ φειδόμενος ἢ ἐλεῶν ἢ αἰσχυνόμενος ἢ
δυσωπούμενος, ἴσος δικαστής, εὔνους ἅπασιν ἄχρι τοῦ μὴ
θατέρῳ ἀπονεῖμαι πλεῖον τοῦ δέοντος, ξένος ἐν τοῖς βιβλίοις
καὶ ἄπολις, αὐτόνομος, ἀβασίλευτος, οὐ τί τῷδε ἢ τῷδε δόξει
λογιζόμενος, ἀλλὰ τί πέπρακται λέγων.
This, then, is the sort of man the historian should be: fearless,
incorruptible (adékastos), free (eleútheros), a friend of free
expression and the truth (parrhesías kaì aletheías phílos), […]
giving nothing to hatred or to friendship, sparing no one,
showing neither pity nor shame nor obsequiousness, an impar-
tial judge (ísos dikastés), well disposed to all men up to the
point of not giving one side more than its due, in his books a
stranger and a man without a country, independent, subject to
no sovereign, not reckoning what this or that man will think,
but stating the facts. 49
1.4. Recreating Integrity in Republican Rome

Concerning Republican Rome, the sources available to us seem to follow a
similar path – physical uprightness and moral honesty were closely linked.
48
The Greek text can be found in W.H.S. Jones (ed.), Hippocrates Collected Works, vol. I,
Cambridge (MA), Harvard University Press, 1868. On its importance for the history of med-
ical thought, see Robert M. Veatch, Hippocratic, Religious, and Secular Medical Ethics: The
Points of Conflict, Georgetown University Press, Washington, DC, 2012. On the ‘legal’
character of this oath and the obligations which arise from its text, see Lisa R. Hasday, “The
Hippocratic Oath as Literary Text: A Dialogue Between Law and Medicine”, in Yale Journal
of Health Policy, Law, and Ethics, 2002, no. 2, pp. 299–324.
49
The Greek text is taken from Karl Jacobitz (ed.), Luciani Samosatensis Opera, vol. II, B.G.
Teubner, Leipzig, 1913. The translation corresponds to K. Kilburn, Lucian, vol. VI, Harvard
University Press, Cambridge (MA), 1959.

The ethical and political centre was the vir, the adult male citizen. In the
social hierarchy of status, the role of Roman men was heavily dependent
on the nature of their body: a Roman citizen was seen in sexual terms as an
agent of penetration, whereas in the political and legal dimensions he was
expected to enforce domestic authority as a pater familias. Since defending
the body from external assault was the cornerstone of masculinity, the ide-
alized image of Roman men involved a sexual protocol based on the clear
establishment of physical boundaries, which turned their bodies into im-
penetrable constructions. 50 Manhood therefore meant, at the same time,
immunity from physical invasion, and civic autonomy. Once again, at the
crossroad between physicality and ethics, integrity was definitely a signifi-
cant feature of these two complementary dimensions.
Following the Greek tradition, external and internal connotations also
conflated in the Latin vocabulary involving integrity and corruption. Thus,
the word corruptio meant “dishonest conduct, seduction, harm, bribery”
and the related verb corrumpere similarly translatable as “to utterly destroy,
ruin, spoil, damage, adulterate”. Integrity, on the other side, was expressed
through nouns such as temperantia, “self-control”; innocentia, “blameless-
ness” and integritas, “intactness, completeness, wholeness”, which origi-
nated our correspondent words. 51 Significantly, integritas came from in-
tangere (“not to touch”) and therefore remained close to the Greek
ἀκεραιότης (akeraiótes), which, according to Bosman, also derived from a-
keránnymi (“not to mix”).
Unlike our modern perception, in which integrity seems to relate to
innocence and honesty – and more recently became associated with interi-
ority, autonomy, and reflection – in Republican Rome the idea of integritas
involved strong physical traits. 52 This can be noted when examining the
relevant passages, where the concept is placed next to adjectives indicating
purity and intangibility. Expressions such as integer intactusque, which is
ubiquitous in Livy, 53 integer et incorruptus, 54 integer et inlibatus, 55 or inte-
ger et inviolatus 56 easily demonstrate the nature of this semantic scope.
50
Jonathan Walters, “Invading the Roman Body: Manliness and Impenetrability in Roman
Thought”, in Judith P. Hallett and Marilyn B. Skinner (eds.), Roman Sexualities, Princeton
University Press, Princeton, 1997, pp. 29–46.
51
Bosman, 2012, pp. 3–5, see above note 18.
52
Robert A. Kaster, Emotion, Restraint and Community in Ancient Rome, Oxford University
Press, Oxford, 2005, pp. 135–137.
53
Livy 5. 38. 7, 10.14. 20, 10. 27. 9, 10. 36. 3, inter alia multa.

In fact, the adjective integer was mostly used with physical entities
in order to refer to those characteristics which made it entirely what they
were: this implied that something which was described as integer remained
unaltered since it had not suffered from any addition (which might eventu-
ally spoil its purity) or subtraction (which would undermine its whole-
ness). 57 The idea behind this material sense of integrity is clearly seen in
the way the Romans referred to the movement of rivers in which waters
were deemed to be neither contaminated nor compromised. In Tacitus’ His-
tories, for instance, the river Jordan “is not received by the open ocean but
flows integer through one lake, then another, and is captured by a third”
(nec Iordanes pelago accipitur, sed unum atque alterum lacum integer per-
fluit, tertio retinetur, 5.6). 58 When defined as integer, a river was conceived
as both pure and complete, in accordance with its original essence.
The transferal of the material implications of integritas to the moral
realm keeps this idea of purity and completeness. Not surprisingly, Cicero
explicitly mentioned the close relationship between physical qualities and
spiritual virtues. Bodies and minds could become impure and crooked
when altered. Corruption was in fact a sort of disease affecting both the
body and the soul, but the mind could be as beautiful as the body if charac-
terized by equality, constancy of opinions and judgments, firmness and sta-
bility, as suggested in Tusculan Disputations 4.28-31:
morbum appellant totius corporis corruptionem,
aegrotationem morbum cum imbecillitate, vitium, cum partes
corporis inter se dissident, ex quo pravitas membrorum,
distortio, deformitas (…) Atque ut in malis attingit animi
naturam corporis similitudo, sic in bonis. sunt enim in
corpore praecipua, pulchritudo, vires, valetudo, firmitas,
54
Cicero, For Marcus Fonteius 3, De Natura Deorum 2. 71, etc.
55
Seneca, Dialogue 2. 6. 7; Pliny, Panegyricus 25. 1.
56
Cicero, Against Verres 2. 4. 130, Livy 6. 3. 10.
57
Bosman, 2012, pp. 4–5, see above note 18.
58
Similarly, Pomponius Mela – the first Roman geographer – explained that the Rhône “main-
tains its course, passing unaltered (integer) through the middle of the lake and emerging
with its volume undiminished” (tenet impetum, seque per medium integer agens quantus ve-
nit egreditur, 2.79). Speaking of the Tigris, Seneca stated that its course was restored with its
full size (integrae magnitudinis redditur, Ad Lucilium Epistulae Morales 104. 15). Also, in
his Dialogues, the spring Arethusa was said to remain unchanged (integrum) beneath many
seas, saved from mingling with water of lesser quality (inlapsum terris flumen integrum sub-
ter tot maria et a confusione peioris undae servatum, 6.17.3).

velocitas, sunt item in animo (…) sic in animo opinionum

iudiciorumque aequabilitas et constantia cum firmitate
quadam et stabilitate virtutem subsequens aut virtutis vim
ipsam continens pulchritudo vocatur. 59
They call that a disease where the whole body is corrupted;
they call that sickness where a disease is attended with a
weakness, and that a defect where the parts of the body are not
well compacted together; from whence it follows that the
members are misshapen, crooked, and deformed (…) As there
is some analogy between the nature of the body and mind in
evil, so is there in good; for the distinctions of the body are
beauty, strength, health, firmness, quickness of motion: the
same may be said of the mind. (…) The beauty of the mind
consists in an equality and constancy of opinions and judg-
ments, joined to a certain firmness and stability, pursuing vir-
tue, or containing within itself the very essence of virtue. 60
Straight or firm bodies were described as “whole”, in the sense that
their parts were not separated but rather formed a single unity. As already
indicated for the Greek texts, deformations and crookedness became here
indicative of physical corruption (which was presented in turn as a disease,
morbus). The link between bodily weakness and mental deterioration
showed the extent to which the physical elements could underline intellec-
tual virtues.
The political implications of this image of corporal and spiritual vic-
es cannot be underestimated, especially since the Roman community was
perceived as a body politic which needed to stay as healthy, pure and intact
(and therefore exempt from corruption) as its citizens. In his treatise De
officiis – which has been accurately described as “a contemporary hand-
book of the elite’s behaviour” 61 – Cicero described that, when performing
civic activities, the duties of public officials should encompass appropriate
behaviour and uprightness. In particular, this entailed the rejection of indi-
vidual benefits for the sake of collective interests (1.85):
59
The Latin text is taken from the edition prepared by Max Pohlenz (ed.), M. Tullius Cicero.
Tusculanae Disputationes, Teubner, Leipzig, 1918.
60
The translation belongs to C.D. Yonge (ed.), Cicero’s Tusculan Disputations, Harper &
Brothers, New York, 1877.
61
Valentina Arena, “Fighting Corruption. Political Thought and Practice in the Late Roman
Republic”, in Kroeze, Vitória and Geltner, 2017, pp. 35–47, at p. 40, see above note 33.

Omnino qui rei publicae praefuturi sunt, duo Platonis

praecepta teneant, unum, ut utilitatem civium sic tueantur, ut,
quaecumque agunt, ad eam referant obliti commodorum
suorum, alterum, ut totum corpus rei publicae curent, ne, dum
partem aliquam tuentur, reliquas deserant. Ut enim tutela, sic
procuratio rei publicae ad eorum utilitatem, qui commissi
sunt, non ad eorum, quibus commissa est, gerenda est. Qui
autem parti civium consulunt, partem neglegunt, rem
perniciosissimam in civitatem inducunt, seditionem atque
discordiam.
Those who propose to take charge of the affairs of govern-
ment should not fail to remember two of Plato's rules: first, to
keep the good of the people so clearly in view that regardless
of their own interests they will make their every action con-
form to that; second, to care for the welfare of the whole body
politic and not in serving the interests of some one party to be-
tray the rest. For the administration of the government, like
the office of a trustee, must be conducted for the benefit of
those entrusted to one's care, not of those to whom it is en-
trusted. Now, those who care for the interests of a part of the
citizens and neglect another part, introduce into the civil ser-
vice a dangerous element – dissension and party strife. 62
As far as vocabulary is concerned, the expected political conduct of
public officers remained close to the descriptions provided by Cicero in his
forensic speeches, when praising his clients to the courts. Taking into ac-
count the importance of endorsing shared values in Roman tribunals in or-
der to ensure a favourable verdict, Cicero focused on a particular set of re-
current key moral characteristics which shaped the ethical assessment of a
person. 63 When describing Balbus’ military service, for example (For Cor-
nelius Balbus 6), he noted his “industry, determination, fighting spirit, and
valour worthy of a general” (labor, adsiduitas, dimicatio, virtus digna
62
Both the Latin text and the English translation have been taken from Walter Miller (ed.), M.
Tullius Cicero. De Officiis, Harvard University Press, Cambridge (MA) and London, 1913.
Later in the text, Cicero affirmed again that exploiting the state for selfish profit was not on-
ly immoral, but also criminal and infamous (habere enim quaestui rem publicam non modo
turpe est, sed sceleratum etiam et nefarium, 2.77). Cicero laid the foundations for the moral
obligations that need to be met in modern times by those holding a public office; see Steve
Sheppard, I Do Solemnly Swear: The Moral Obligations of Legal Officials, Cambridge Uni-
versity Press, Cambridge, 2009, p. 49.
63
Claudia I. Arno, How Romans Became “Roman”: Creating Identity in an Expanding World,
Ph.D. Dissertation, University of Michigan, Ann Arbor, 2012, pp. 25–27.

summo imperatore), referring later to his pudor, integritas, religio, and dili-
gentia and his well-known castitas, sanctitas and moderatio. In political
terms, integrity comprised a wide range of private and public virtues relat-
ed to the essential qualities of “wholeness” and “purity”. As with rivers,
these positive values were described as essential in the characterization of
an individual, who possessed them in spite of the many changing circum-
stances surrounding his life. 64
Civic virtues were extremely useful to distinguish good and bad citi-
zens. In Against Verres, Cicero stated that – unlike his rival – he cherished
fides, pudor, pudicitia, religio and ius aequum (2.3.6). He then described
Verres’ corrupt way of acting by accusing his listeners of not being able to
appreciate values which were inherent to Roman citizens, such as virtue,
trustworthiness (integritas), hard work, frugality, and modesty (2.3.7-8):
illa quae leviora videntur esse non cuiusvis animum possunt
movere, quod ad tuam ipsius amicitiam ceterorumque
hominum magnorum atque nobilium faciliorem aditum istius
habet nequitia et audacia quam cuiusquam nostrum virtus et
integritas? odistis hominum novorum industriam, despicitis
eorum frugalitatem, pudorem contemnitis, ingenium vero et
virtutem depressam exstinctamque cupitis: Verrem amatis! Ita
credo; si non virtute, non industria, non innocentia, non
pudore, non pudicitia, at sermone, at litteris, at humanitate
eius delectamini. Nihil eorum est, contraque sunt omnia cum
summo dedecore ac turpitudine tum singulari stultitia atque
inhumanitate oblita. 65
What? cannot even those matters, which seem more trifling,
move any one’s mind, – that the worthlessness and audacity of
that man should have a more easy access to your own friend-
ship and to that of other great and noble men, than the virtue
and integrity of any one of us? You hate the industry of new
men; you despise their economy; you scorn their modesty;
you wish their talents and virtues to be depressed and extin-
guished. You are fond of Verres: I suppose so. If you are not
gratified with his virtue, and his innocence, and his industry,
and his modesty, and his chastity, at least you are transported
at his conversation, his accomplishments, and his high breed-
64
Kaster, 2005, pp. 137, 142, see above note 52.
65
The Latin text is taken from William Peterson (ed.), M. Tvlli Ciceronis Orationes, Clarendon
Press, Oxford, 1917.

ing. He has no such gifts; but, on the contrary, all his qualities
are stained with the most extreme disgrace and infamy, with
most extraordinary stupidity and boorishness. 66
Other relevant passages in the Verrine Orations complemented this
axiological model by providing us with a larger picture of ‘integrity’: on
some occasions we see that several references were made to identify the
public display of virtues by jury members and even by women. As far as
the first group is concerned, unlike other magistrates, both Quintus Manlius
and Quintus Cornificius were presented by Cicero under a positive light
that pointed directly to their ethically “upright” comportment (1.1.30):
Q. Manlium et Q. Cornificium, duos severissimos atque
integerrimos iudices, quod tribuni plebis tum erunt, iudices
non habebimus; P. Sulpicius, iudex tristis et integer,
magistratum ineat oportet Nonis Decembribus.
We shall not have Quintus Manlius and Quintus Cornificius,
two most severe and upright judges, for judges, because they
will then be tribunes of the people. Publius Sulpicius, a sol-
emn and upright judge, must enter on his magistracy on the
fifth of December.
With regards to women, when presenting Philodamus’ unmarried
daughter, she was described by Cicero as “a woman of extraordinary beau-
ty, who was judged to be exceedingly modest and virtuous” (mulierem ex-
imia pulchritudine; sed eam summa integritate pudicitiaque existimari,
2.1.64). In this case, integritas corresponded to a female value, since it was
connected to pudicitia with the purpose of showing her virginal purity and
respectability. 67
These examples show that integritas, as an abstract notion which
could adapt to different contexts, mainly conveyed the idea of physical and
moral “wholeness”, implying not only strictness in public performances but
also chastity and honesty. 68 It encompassed then a large set of personal dis-
66
With slight modifications, the translation belongs to C.D. Yonge (ed.), The Orations of Mar-
cus Tullius Cicero, George Bell & Sons, London, 1903.
67
In Cicero – and elsewhere in Roman oratory – it was a common strategy to present the mo-
rality of individuals in relation to their families. Nobility and excellence (virtus, dignitas)
were intertwined to shape one’s reputation, as examined by Susan Treggiari, “Ancestral Vir-
tues and Vices: Cicero on Nature, Nurture, and Presentation”, in Emma Gee (ed.), Myth,
History and Culture in Republican Rome: Studies in Honour of T.P. Wiseman, University of
Exeter Press, Exeter, 2003, pp. 139–164.
68
Kaster, 2005, p. 138, see above note 52.

positions, which had made their way into the public sphere when a consci-
entious behaviour had to be shown in front of others, but in reality re-
sponded to an individual nature which was generally seen as all-embracing
and unadulterated. 69 Also in a highly political context, a passage of Sal-
lust’s Conspiracy of Catiline, where Caesar and Cato are compared and
judged, complements our reading of the private and public dimensions of
integritas by alluding to self-containment and firmness (54.2-6):
Caesar beneficiis ac munificentia magnus habebatur, integri-
tate vitae Cato. Ille mansuetudine et misericordia clarus fac-
tus, huic severitas dignitatem addiderat. Caesar dando suble-
vando ignoscundo, Cato nihil largiundo gloriam adeptus est.
In altero miseris perfugium erat, in altero malis pernicies.
Illius facilitas, huius constantia laudabatur. Postremo Caesar
in animum induxerat laborare, vigilare; negotiis amicorum
intentus sua neglegere, nihil denegare quod dono dignum
esset; sibi magnum imperium, exercitum, bellum novom
exoptabat, ubi virtus enitescere posset. At Catoni studium
modestiae, decoris, sed maxume severitatis erat; non divitiis
cum divite neque factione cum factioso, sed cum strenuo
virtute, cum modesto pudore, cum innocente abstinentia
certabat; esse quam videri bonus malebat: ita, quo minus
petebat gloriam, eo magis illum [ad]sequebatur. 70
Caesar grew eminent by generosity and munificence; Cato by
the integrity of his life. Caesar was esteemed for his humanity
and benevolence; austereness had given dignity to Cato. Cae-
sar acquired renown by giving, relieving, and pardoning; Cato
by bestowing nothing. In Caesar, there was a refuge for the
unfortunate; in Cato, destruction for the bad. In Caesar, his
easiness of temper was admired; in Cato, his firmness. Caesar,
in fine, had applied himself to a life of energy and activity; in-
tent upon the interest of his friends, he was neglectful of his
own; he refused nothing to others that was worthy of ac-
ceptance, while for himself he desired great power, the com-
mand of an army, and a new war in which his talents might be
displayed. But Cato’s ambition was that of temperance, discre-
69
According to Kaster, 2005, p. 140, see above note 52, “taken together, these personal and
social behaviors and dispositions are constitutive of integritas: being ethically integer just
means that you possess these dispositions and display these behaviors”.
70
The Latin text has been taken from Axel W. Ahlberg (ed.), C. Sallusti Crispi. Catilina,
Iugurtha, Orationes et epistulae excerptae de historiis, Teubner, Leipzig, 1919.

tion, and, above all, of austerity; he did not contend in splen-

dour with the rich, or in faction with the seditious, but with
the brave in fortitude, with the modest in simplicity, with the
temperate in abstinence; he was more desirous to be, than to
appear, virtuous; and thus, the less he courted popularity, the
more it pursued him. 71
The opposition between the two characters is built on the basis of
contradictory virtues. Whereas Caesar was considered great as a conse-
quence of his benevolence and generosity, Cato’s personality was defined
by the integritas of his life. The former was famous for his gentle and
compassionate character, while the latter derived standing from his stern-
ness. Affability, on the one side; resolution, on the other one. It seems evi-
dent that the attributes ascribed to Caesar were mainly external, insofar as
they were directed towards others. On the contrary, Cato’s traits were basi-
cally internal: they referred to self-centeredness, personal harshness and
austerity. His honesty was revealed by means of strictness and gravity (se-
veritas). His virtues undermined Caesar’s merits because they referred to
absolute ethics. It follows that perhaps the core of integrity, for the Roman
mind, concerned a set of normative principles that were born in the inner
self. 72
Cicero’s speech For Lucius Murena also mentioned Cato’s gravitas.
When responding to the prosecution, he launched his arguments for the de-
fense by firstly endorsing Cato’s conscientiousness, identifying him as “a
man of the utmost seriousness and integrity” (gravissimo atque integrissi-
mo viro, Mur. 3). 73 As it happened with the description of Cato’s ethics in
For Sestius 60, his virtus was related here to gravitas (“earnestness”) and
integritas (“probity”).
Sallust provided us elsewhere in his text with antithetical characters.
By heavily criticizing the corrosive political environment of his time – as
71
The translation is taken from John Selby Watson (ed.), Sallust. Conspiracy of Catiline, Har-
per & Brothers, New York and London, 1899.
72
Even the expression of the antithesis is relevant when the Catonian subordination of self to
ethics is presented. This subordination is paralleled with a chiasmus, which allows integritas
vitae to be placed in a privileged position. See William W. Batstone, “The Antithesis of Vir-
tue: Sallust’s ‘Synkrisis’ and the Crisis of the Late Republic”, in Classical Antiquity, 1989,
no. 7, pp. 1–29. On this passage, see also Myles Anthony McDonnell, Roman Manliness.
Virtus and the Roman Republic, Cambridge University Press, Cambridge, 2006, p. 341.
73
Malcolm Schofield, “Republican Virtues”, in Ryan K. Balot (ed.), A Companion to Greek
and Roman Political Thought, Blackwell, London, 2009, pp. 199–213, at p. 204.

opposed to the greatness of the ancestors – Sallust described Lucius Cati-

line’s moral degradation at the beginning of his speech. Apart from his per-
sonal inclinations, Catiline’s violent spirit responded to the circumstances
which prompted his lack of integrity: “The corrupt morals of the state, too,
which extravagance and selfishness, pernicious and contending vices, ren-
dered thoroughly depraved, furnished him with additional incentives to ac-
tion” (incitabant praeterea corrupti civitatis mores, quos pessuma ac di-
vorsa inter se mala, luxuria atque avaritia, vexabant, Cat. 5).
Like in classical Athenian oratory, here Sallust’s prose confirmed that
corrupted characters echoed the political ruin of the community. However,
the text itself leaves room for change since an example involving the au-
thor himself suggests that, in very specific circumstances, a negative social
background could be overcome by the personal qualities of a subject. By
endorsing the possibility of moral recovery, Sallust presented a mea culpa
when describing his own youth, marked by shamelessness, bribery, rapacity,
and ambition. To explain his moral evolution, he compared his early depra-
vation with the modesty, chastity and honesty he developed later in life
when becoming a historian for the Roman people. It becomes an interesting
account of the birth of his own intellectual integrity (3.3-5):
Sed ego adulescentulus initio, sicuti plerique, studio ad rem
publicam latus sum ibique mihi multa advorsa fuere. Nam pro
pudore, pro abstinentia, pro virtute audacia, largitio, avaritia
vigebant. Quae tametsi animus aspernabatur insolens mala-
rum artium, tamen inter tanta vitia imbecilla aetas ambitione
corrupta tenebatur.
When I myself was a young man, my inclinations at first led
me, like many others, into public life, and there I encountered
many obstacles; for, instead of modesty, chastity and honesty,
shamelessness, bribery and rapacity held sway. And, although
my soul, a stranger to evil ways, recoiled from such faults, yet
amid so many vices my youthful weakness was corrupted and
held captive by ambition. 74
If political action required moral standards of suitable behaviour, it is
not surprising that the same Republican virtues had to be displayed by
those in charge of explaining facts and analyzing the past: “On the contrary,
I resolved to return to a cherished purpose from which ill-starred ambition
74
The English translation is taken from J.T. Ramsey (ed.), Sallust’s Bellum Catilinae, Oxford
University Press, Oxford, 1984.

had diverted me, and write a history of the Roman people” (sed, a quo in-
cepto studioque me ambitio mala detinuerat, eodem regressus statui res
gestas populi Romani carptim, 4.2).
In Sallust’s wording, therefore, pudor, abstinentia and virtus should
not be overcome by audacia, largitio and avaritia. A good citizen needed
to uphold the pure values of virtus, pietas, iustitia, modestia and integritas,
thus rejecting being contaminated or altered by corruptio and ambitio. 75 A
final comment should be made on this effort to circumvent the pollution of
venality.
The idea of corruption pervaded ancient Rome since early times, 76 so
the moral qualities of Roman men were expected to protect the public in-
terests from the selfish desires of worthless politicians. So far, little differ-
ence can be seen when comparing this experience with the ethical condem-
nation of corruption that we portrayed for classical Athens. However, un-
like the Athenian practice, in ancient Roman law, one of the best-recorded
crimes of political corruption was ambitus, which consisted mainly of a
candidate’s effort to influence the result of an election through bribes or
other subtler methods of soft power. Since “going around” in order to ap-
peal to the people could easily lead to unethical excesses, the moral risks
involved in ambitus soon led to the emergence of legislation aimed at crim-
inalizing electoral bribery. 77 Once again, the need to endorse the high
standard and practice of integrity fostered an institutional reaction to fight
bribery. The moral idea behind these legal-political measures was to curb
75
These Republican virtues can be explored in contemporary Roman theater as well. Not un-
like its Athenian precedent, drama engaged with a variety of these expected qualities; see
Gesine Manuwald, Roman Republican Theater, Cambridge University Press, Cambridge,
pp. 294–295.
76
Carlo Alberto Brioschi, Corruption: A Short Story, Brookings Institution, Washington, DC,
2017, pp. 39–50.
77
The so-called Lex Baebia was the first law against ambitus, instituted by M. Baebius Tam-
philus during his consulship in 181 BCE. On the reactions to ambitus and electoral corrup-
tion in Republican Rome, see for instance Georges Chaigne, L’ambitus et les moeurs électo-
rales des Romains, E. Larose, Paris, 1911; Élisabeth Deniaux, “De l’ambitio à l’ambitus : les
lieux de la propagande et de la corruption électorale à la fin de la République”, in L’Urbs,
espace urbain et histoire (Ier siècle av. J.-C. – IIIe siècle ap. J.-C.) (Actes du colloque de
Rome, 8-12 mai 1985), École française de Rome, Rome, 1987, pp. 279–304; Tammo Wal-
linga, “Ambitus in the Roman Republic”, in Revue Internationale des Droits de l’Antiquité
41, 1994, pp. 411–442; Peter Nadig, Ardet Ambitus. Untersuchungen zum Phänomen der
Wahlbestechungen in der römischen Republik, Peter Lang, Frankfurt am Main and New
York, 1997, and Brahm H. Kleinman, Ambitus in the Late Roman Republic (80-50 B.C.),
MA Thesis, Department of History and Classical Studies, McGill University, Montreal, 2012.

corruption and improve government by strengthening the basis of the Re-

public under the traditional values of libertas, concordia, virtus and fides. 78
As conveyed by the examples of Cicero or Sallust, the fall of Repub-
lican Rome has been frequently ascribed by Latin authors to ethical fail-
ure. 79 The image of a corrupted political system, immersed in vice, was
facilitated by the fact that the whole community was regarded as a single
body politic, 80 and therefore the physical and moral deterioration of a per-
son – which has been addressed in the sources – could be easily applied to
the society as a whole. 81 In sum, the interpretation of political decline being
the result of the moral neglect of traditional principles shows the im-
portance attached by the Romans to integrity and its associated values,
considered to be high-level standards that enabled a community to live to-
gether under common criteria of unity, mutual respect and concord.
1.5. Ancient Integrity Today: A Reappraisal of Classical Values in
Times of Moral Crisis?
Some final remarks can be drawn from the ancient sources, which have
been discussed along this chapter. Firstly, it should be noticed that, through
the repetition of a similar vocabulary, the ancient Greek and Roman texts
make reference to the (necessary) opposition between corruption and integ-
rity in order to identify contradictory opinions regarding vice and virtue in
society. When referring to virtues that can be related to our modern sense
of integrity, the terms used in Greek and Latin indicate an overlapping of
concrete and abstract senses (straight/crooked; altered/unaltered; deterio-
rated/pure) that deal both with a physical and a moral dimension at the
same time. Integrity thus is firmly constructed over a metaphorical use of
body imagery which tends to appeal to the merits of purity and untoucha-
bility.
78
Arena, 2017, pp. 35–47, at p. 47, see above note 61.
79
On Cicero’s texts, see Thomas N. Mitchell, “Cicero on the moral crisis of the late Republic”,
in Hermathena, 1984, no. 136, pp. 21–41.
80
Barbara Levick, “Morals, Politics, and the Fall of the Roman Republic”, in Greece and
Rome, 1982, no. 29, pp. 53–62.
81
Ramsay MacMullen, Corruption and the Decline of Rome, Yale University Press, New Ha-
ven, 1990, has argued that a key factor in Rome’s fall was the steady loss of focus and con-
trol over government as its aims were thwarted for private gain by high-ranking bureaucrats
and military leaders.

Since uprightness and rectitude were considered appropriate values

for citizenship, the original features of ‘integrity’ were soon enlarged to
adopt a strong political background. This new civic setting explains its use
as a regular motif in assembly performances, dramatic representations, and
judicial activities. In different literary genres – such as oratory, tragedy,
comedy or philosophical treatises – Athenian and Roman sources frequent-
ly resorted to a rhetorical construction of ‘integrity’ which relied on the
pre-existing positive consideration of moral soundness, truthfulness and
honesty, and the need to attribute the opposing standards of spiritual decay
to those ‘others’ who did not share the private and public values endorsed
by the community.
It may be true that the original bodily dimension of integrity, which
was present in classical Greece and Rome, has been lost today, but the civic
use of physical metaphors to describe rectitude or corruption remains in our
time. Since the earliest sources, there has been a clear idea in antiquity
about the need to eradicate corruption and to challenge litigants, judges or
politicians who did not behave according to the principles of justice, right-
eousness and decency. Authors such as Hesiod, Aristotle or Cicero – to take
only some samples – understood the distinction between the private good
and the public interest, and were very well aware of the duty to comply
with the dictates of high morality when acting publicly. 82
A final question remains to be addressed: why should we come back
to classical sources when dealing with integrity today? First of all, we have
to acknowledge that our modern idea of ‘integrity’ in the Western world
depends heavily on its Christian background. The meaning of integritas in
early Christianity and medieval times still relied on its ancient roots but,
contrary to the examples from classical Greece or Republican Rome, soon
expanded for religious concerns to cover a mental state of divine grace,
82
Hill, 2013, p. 587, see above note 36. Further reading on ancient corruption should include
Wolfgang Schuller (ed.), in Korruption im Altertum, R. Oldenbourg Verlag, München/ Wien,
1982; Carine K. Doganis, Aux origines de la corruption : démocratie et délation en Grèce
ancienne, Presses Universitaires de France, Paris, 2007; Arlene W. Saxonhouse, “Corruption
and Justice: The View from Ancient Athens”, in William C. Heffernan and John Kleinig
(eds.), Private and Public Corruption, Rowman & Littlefield, Lanham, 2004, pp. 25–51;
and Cristina Rosillo López, La corruption à la fin de la république romaine (IIe-Ier s. av. J.-
C.): aspects politiques et financiers, Franz Steiner, Stuttgart, 2010.

original or restored. 83 In this moral theology based on the Bible – which is

the main source allowing to teach and train in righteousness – virtuous and
wrong behaviour have been examined through the lens of the compliance
with cardinal and theological virtues, and specifically with the command-
ments. 84
As presented here, the complex politics of ancient ‘integrity’ can
contribute to overcoming the cultural bias of Christianity and giving a dif-
ferent (more global and less inclined) viewpoint on moral responsibility
and elevated standards of ethical behaviour when examining the admin-
istration of international justice. 85
A second argument involves classical debt. In an interesting book re-
cently published, Johanna Hanink argues that contemporary discussions on
the Greek crisis have included interesting references to the debt we owe to
antiquity, imagined as a symbolic return to the fantasy of a past character-
ized by exceptional achievements which are very different from our current
state of despair. 86 In a hectic twenty-first century, where values seem erod-
ed and morality is said to have been replaced by self-interest and venality,
antiquity can still offer a well-founded set of criteria that can serve to iden-
tify an alternative discourse to the moral shortfall of contemporary socie-
ties.
When the first universal permanent international criminal court was
created, the designated location for discussions and negotiation was eternal
Rome. Perhaps the international community decided to reappraise the lega-
cy of ancient values and follow their traces. Under the close scrutiny of
Zeus or Jupiter, history can provide contemporary judges or politicians
83
On the notion of integritas in Ambrose, Augustine and Thomas, see Margaret E. Mohrmann,
“Integrity; Integritas, Innocentia, Simplicitas”, in Journal of the Society of Christian Ethics,
2004, vol. 24, no. 2, pp. 25–32.
84
D. Stephen Long, Christian Ethics: A Very Short Introduction, Oxford University Press,
Oxford, 2010. On the main concepts involved in Christian moral theology, see James F.
Childress and John Macquarrie (eds.), The Westminster Dictionary of Christian Ethics,
Westminster Press, Philadelphia, 1986.
85
Bergsmo, 2018, p. 4, see above note 1.
86
Johanna Hanink, The Classical Debt. Greek Antiquity in an Era of Austerity, Belknap Press,
Cambridge (MA) and London, 2017. Similarly, Dean Hammer, Roman Political Thought
and the Modern Theoretical Imagination, University of Oklahoma Press, Norman, 2008,
p. 14, deals with ancient Rome and considers that the idealist conception of a Western tradi-
tion “saw the world as organized by eternal essences, linked the past with the present, envi-
sioned a progressive conception of historical development, and provided a moral foundation
to contemporary conceptions of the state”.

with the uppermost standards of moral behaviour. If we feel proud to stand

on the shoulders of giants, then we have no option but to live up to their
higher ethical aspirations. 87
87
See Morten Bergsmo, Wolfgang Kaleck, Sam Muller and William H. Wiley, “A Prosecutor
Falls, Time for the Court to Rise”, FICHL Policy Brief Series No. 86 (2017), Brussels, 2017
(http://www.toaep.org/pbs-pdf/86-four-directors/), pp. 1, 4.

2
______
Integer Vitae:
Christian Sources and Reflections on
Integrity in Justice
Hanne Sophie Greve *
2.1. Introduction
2.1.1. Definition
In his poem “Integer Vitae”, Quintus Horatius Flaccus describes his hero as
“Integer vitae scelerisque purus” – a man of uprightness and stainless in-
tegrity”. 1 In antiquity, integer was not used with the meaning as later given
to it. Integer means ‘whole’, ‘unimpaired’ and ‘untouched’. Its specific
meaning is evinced by its context. In relation to political activity, it may be
read as ‘incorruptible’, in friendship as ‘loyal’, and in love as ‘faithful’.
I shall here define integer to denote a person not lacking in any ca-
pacity needed for moral or ethical behaviour in providing justice.
Intellectual virtues – the five ways the soul arrives at truth by affir-
mation or denial – make the human mind a more efficient instrument of
knowledge and promote intellectual flourishing, critical thinking and the
pursuit of truth. The three speculative intellectual virtues are understanding,
scientific knowledge and wisdom. The two practical ones are art and prac-
tical wisdom.
A measure of intellectual virtues is an ‘obvious’ requirement for legal
office. I will pay no further attention to them, as my focus is moral or ethi-
cal behaviour in providing justice.
*
Hanne Sophie Greve is Vice President of the Gulating High Court, Norway, and member of
the International Commission against the Death Penalty. She has previously served, inter
alia, as an Expert in the UN Commission of Experts for the Former Yugoslavia established
pursuant to UN Security Council resolution 780 (1992) (1993–94); and Judge at the Europe-
an Court of Human Rights (1998–2004). She has served as UNHCR Assistant Protection Of-
ficer (1979–1981, Bangkok), and as a mediator for the UN Transitional Authority in Cam-
bodia (1992–beginning of 1993, Phnom Penh). She has had several consultancies in and lec-
tured extensively on international law (human rights, refugee law, law of war and criminal
justice).
1
Quintus Horatius Flaccus (Horace), “Integer Vitae”, in Odes, Book 1, 23 BC.

2.1.2. Ethics
So God created man in his own image, in the image of God
created he him; male and female created he them. 2
Thus, the extraordinary simplicity and absolute complexity of our
shared human existence. The human person partakes of the divine nature of
God by the act of creation. In this, all human beings are equals and the hu-
man worth is inherent. Human plurality has the dual character of equality
and distinction.
Human life is a conditioned reality. The individual is a party to con-
ditioning her or his own circumstances, and a party to conditioning the cir-
cumstances of fellow human beings.
Each person is both ‘self’ and ‘the other’. I am both I and – in rela-
tion to everyone else – I am the Other, You. For a human being to be mind-
ful of the human condition and to understand the reality of life is to recog-
nise her or his dual character as living as a human being among humans –
all subjects.
The Golden Rule – “Do unto others as if you were the others” – is
the epitome of ethical action articulated in almost every religion and cul-
ture. 3
Normative ethics is concerned with developing moral standards that
regulate right and wrong conduct. Virtue ethics are one of the oldest nor-
mative traditions in Western civilization.
2.2. Basic Concepts
2.2.1. Human Faculties
Human faculties are abilities. The four human faculties contributing to our
moral acts are:
• the intellect;
• the will;
• the appetite of desire; and
• the appetite of aversion.
2
Genesis 1:27, King James Version (the publisher’s preferred version). An alternative transla-
tion from the English Standard Version and the Revised Standard version reads as follows:
“So God created man in his own image, in the image of God he created him; male and fe-
male he created them”.
3
In the Bible referred to in Leviticus 19:18, Matthew 7:12 and Luke 6:31.

2. Integer Vitae: Christian Sources and Reflections on Integrity in Justice
2.2.2. Controlling Powers

Each of these four faculties is in need of corresponding controlling powers
to keep them straight:
• prudence for the mind;
• justice for the will;
• temperance for the urge to what is pleasant; and
• fortitude for the instinct away from what is painful.
Their functions can be summarised as: look around, act, keep away
from, and bear up with. For the controlling powers, Thomas Aquinas in-
vented the word ‘virtue’ from ‘vir’ – man – and ‘vis’ – power. 4
The Scriptures have several words for virtue signifying strength or
power, might, moral excellence or perfection. Moral virtue is true, honour-
able, upright and pure.
Virtue ethics emphasise education to develop good habits of charac-
ter. Human virtues are firm attitudes, habitual perfections of intellect and
will that govern our actions, order our passions and guide our conduct ac-
cording to reason inclining it towards the Good. Habits reside in the facul-
ties as stable dispositions that prompt the faculties to act with ease and dex-
terity in a certain way.
Aristotle was the basic source on which Aquinas built the structure of
the core virtues – four due to the objective order of morality. The mind
must first discover this order and propose its commands to the will; pru-
dence, or the habit of doing the right thing at the right time, is reason’s
helper. The will, in turn, must execute the commands that are justice, or the
habit of giving every person her or his due. Temperance helps the will to
control the appetite’s desires, and fortitude aids to manage the same appe-
tite’s aversions.
A person is virtuous because her or his actions correspond to an ob-
jective norm that for Aristotle was knowable by reason and for Aquinas by
reason and faith. Aquinas represents the backbone of an ethical system that
believes that God and religious values are primary, and that true goodness
is to be measured in terms of an ultimate finality, reasoned by the human
being’s natural intellect and fully possessed on the basis of Christianity.
4
Thomas Aquinas, Summa Theologica, Fathers of the English Dominican Province (trans.),
Notre Dame, IN, 1981 [1265-1274].

2.3. The Cardinal Virtues

The root of ‘cardinal’ is the Latin word cardo, meaning ‘hinge’ – the device
on which a door turns. To be ‘cardinal’ means to belong to the very nature
of a thing so that it cannot be removed without destroying the thing or its
character.
There are four cardinal virtues – prudence, justice, temperance and
fortitude. All other moral virtues can be subsumed under them as being
their potential parts.
A moral virtue is a certain habit of the faculty of choice, consisting of
a mean suitable to our nature and fixed by reason in the manner in which a
prudent person would fix it. A moral virtue does not offend against right
reason by excess or by defect. What is needed is a reasonable balance be-
tween behaviouristic extremes. Virtue ethics advocate that a person should
avoid acquiring bad character traits or vices. To find the mean between ex-
tremes, the human being needs reason’s assistance.
For Aristotle, a human being is virtuous when displaying a beautiful
balance in the person’s moral actions, not unlike the harmony in a work of
art. Christianity added new dimensions of morality. Internal dispositions
and their consequent actions are virtuous because they advance their pos-
sessor in the direction of her or his final destiny to eternal life. Virtue,
moreover, postulates a primal obligation to a divine Lawgiver, whose will
is manifest in conscience and faith, and to whom obedience is due as the
human being’s Creator and God.
2.3.1. Prudence
Prudence treads a careful path. The human existence is conditioned. Moral
reflections have to take into consideration whatever such confines. One
needs to seek harmony of agent, conduct and environment.
Prudence is “right reason in action”, writes Aquinas. 5 Prudence is the
virtue that disposes practical reason to discern our true Good in every cir-
cumstance and to choose the right means of achieving it.
The functions of prudence have been summarised in the word cir-
cumspice – to look around and to look for, to survey, to inspect, to search
for, to examine and to ponder. That is, to seek the necessary insight to make
the appropriate choices. ‘Appropriate’ means taking into consideration the
5
Ibid., II-II, q. 47, a. 2

reality of the human existence, every human being created in the image of
God, ordained for a divine order. Prudence guides the judgment of con-
science.
Prudence is called ‘the charioteer of the virtues’ because it steers the
other virtues by setting rule and measure. 6
The principal act of prudence is the practical executive command of
right reason. Within its orbit come good counsel and sound judgment, and
the ability to deal with exceptional cases.
Prudence as such is not in search of a mean between behaviouristic
extremes. The core is that prudence has to be utilised within a reasonable
time considering the circumstances. Developing the habit of applying right
reason – reaching the understanding needed for the correct choices – is
what is sought for. Prudence may, nevertheless, be construed as a mean be-
tween being insensible and overly thorough.
2.3.2. Justice
My focus here is the cardinal virtue known as ‘justice’. ‘Justice’ and ‘integ-
rity in international justice’ are not interchangeable.
The functions of the cardinal virtue ‘justice’ is summarised in the
word age – to act, to live, to work, to deal with and to defend a cause. It is,
moreover, deliberate inactivity such as to wait and to restrain. Justice is
premeditated human behaviour.
First, there is prudence – light for the mind, both of principles and
practical knowledge – and then there must be rectitude for the will to have
it tend naturally to the Good as defined by reason. Justice is the moral vir-
tue that consists in the constant and firm will to give everyone their due,
and to establish in human relationships the harmony that promotes equity
with regard to persons and to the common Good.
The Scriptures frequently refer to ‘the just person’ as being distin-
guished by habitual right thinking and the uprightness of her or his conduct
toward fellow human beings.
The one innate right of every human being is freedom, the freedom
that is compatible with the freedom of everyone else. The virtue of justice
must imply that one acts to promote the freedom of every human being by
working for the three main – and intertwined – common Goods as known
6
Ibid.

to human societies: security, human flourishing and social cohesion. To

secure these common Goods, there has to be vindication when an injury
has been done.
Attributes to justice such as decency and fidelity have a role to play
as well. For the virtue of justice, there is a mean – too much or too little is
injustice.
2.3.3. Temperance
“Go not after thy lusts, but refrain thyself from thine appetites.” 7 The New
Testament refers to temperance as ‘moderation’ or ‘sobriety’.
The functions of temperance are summarised in the word abstine – to
keep away from, to hold or retain, to abstain or renounce and to moderate
oneself.
For temperance in particular, Aristotle’s view of the aesthetic harmo-
ny of agent, conduct and environment, is evident. However, in the Christian
understanding, temperance more importantly responds to a primal obliga-
tion to the divine Lawgiver and the natural order for His creation – human-
kind.
Temperance is the moral virtue that moderates the attraction of
pleasures – hereunder personal gains and advantages – and provides bal-
ance in the use of created goods. It ensures the will’s mastery over instincts
and keeps desires within the limits of what is honourable.
2.3.4. Fortitude
Per ardua – through adversity.
A key characteristic of the human condition is its frailty. The human
being is vulnerable in every respect. It is deeply human to fear adversity
and danger. As for international justice, many are the applicants and wit-
nesses who have made immense sacrifices and taken huge risks to contrib-
ute to the reign of justice. Humankind has a right to demand the needed
fortitude or courage from every person involved in administering interna-
tional justice. Courage keeps the balance between cowardice and reckless
daring.
Fortitude ensures firmness in difficulties and constancy in the pursuit
of the Good. Fortitude strengthens the resolve to surmount obstacles and
7
Sirach 18:30. An alternative translation from the New Jerusalem Bible: Standard Edition
reads as follows: “Do not be governed by your passions, restrain your desires”.

enables the person to defeat fear. The functions of fortitude may be summa-
rised in the word sustine – to bear up with and endure, to hold in check and
to sustain. Confidence is part of fortitude as is the patience that keeps an
unconquered spirit.
2.4. The Theological Virtues
The Greek list of virtues has been supplemented with three Christian ones:
faith, hope and charity. These theological virtues have God for their origin,
their motive and their object. God known by faith, God hoped in, and loved
for His own sake. They inform the moral virtues and give them life. That is,
the grace of God animates and enhances the moral virtues as well – the vir-
tues cardinal in human conduct, but penultimate and subordinate to the fi-
nal end of human beings as created in the image of God. The theological
virtues bring the ethics of the Genesis into full understanding. Aquinas be-
lieves that a person in the state of grace, or divine friendship, possesses cer-
tain enduring powers, the infused virtues and gifts, that raise her or him to
an orbit of a superior existence and that give abilities of thought and opera-
tion that are of God. An approach distinctively theological but strongly
conversant with philosophy. The theological virtues have a centre of gravi-
ty – a mean in the sense that a human being should exercise these virtues
according to the measure of her or his condition. Aquinas teaches that the
theological virtues faith, hope and charity correspond in the supernatural
order to natural knowledge, hope and love.
2.4.1. Faith
Faith is the theological virtue by which we believe in God. By faith, the
human being freely commits itself to God and seeks to know and do God’s
will. Natural law as dictated by human nature – the eternal law – is instilled
in the human being as endowed with reason, and is inclining the person
towards its right action and end. Aquinas argues that divine wisdom’s con-
ception has the character of ‘law’ insofar as it moves all things to their ap-
propriate ends. The gift of faith should not be deprived of hope and charity.
The gift of faith is intertwined with, or rather it is, meaning – the meaning
of the human existence and the natural order.
2.4.2. Hope
Life is change, constant change – it is unpredictable. The first Christians
depicted hope as an anchor fixed to the shores beyond, to God. Hope is a

source of life, but different from optimism, or merely a positive attitude.

Hope is the humblest of the three theological virtues. It frequently remains
rather invisible. In hope, we place trust in Christ’s promises and rely not
merely on our own strength, but on the help of the grace of the Holy Spirit.
Hope changes us from within. It changes our attitudes. The virtue of hope
teaches us that no human being is ever beyond hope. The virtue of hope
responds to the human aspiration to happiness and inspires human activi-
ties. It keeps the human being from despair and upholds the person during
times of abandonment.
2.4.3. Charity
Charity is the theological virtue by which we love God above all things for
His own sake, and our neighbour – every other human being – as ourselves
for the love of God. All other virtues are animated and inspired by charity
that binds everything together in perfect harmony. Charity is superior to all
other virtues. “And now abideth faith, hope, charity, these three; but the
greatest of these is charity.” 8
2.5. Some Concluding Remarks
Justice is crucial for society to be able to provide security, human flourish-
ing and social cohesion. Justice cannot be dissociated from these overarch-
ing purposes. Integrity cannot be about me only – it materialises in a con-
text where I have to see the Other in the light of hope and charity as well.
Integrity – as justice – is embedded in the human condition and our shared
human reality. One may not be fully able to describe the plurality of virtues
that come together in integrity – but we recognize them when we see them.
It is immediately recognisable when these virtues are lacking as well. It is
not the oath that makes us believe the person, but the person who makes us
believe the oath. When Solomon inherited his father David’s great kingdom,
God asked him what gift he would want. It was neither more power nor
greater wealth. Solomon asked for a listening heart, so that he could be able
to make good decisions. 9
8
1 Corinthians 13:13. Another translation would be: “As it is, these three remain: faith, hope
and love, the three of them; and the greatest of them is love”.
9
1 Kings 3:9.

3
______
Sharí‘ah Sources and Reflections on Integrity
Adel Maged *
He who is entrusted with the function of a judge, is slaugh-

tered without a knife. 1
3.1. Introduction
In most nations, judges, and other judicial officials, such as prosecutors,
play a vital role in dispensing justice and upholding the rule of law. As il-
lustrated in the Bangalore Principles of Judicial Conduct:
A judiciary of undisputed integrity is the bedrock institution
essential for ensuring compliance with democracy and the rule
of law. Even when all other protections fail, it provides a bul-
∗
Adel Maged is the Judge and Vice President of the Egyptian Court of Cassation (Criminal
Chambers). He was appointed Public Prosecutor in April 1987, and served as a Judge at the
Courts of First Instance, Chief Prosecutor at the Criminal Division of the Court of Cassation,
Judge at the Egyptian Court of Appeals, and for several years on secondment to the Ministry
of Justice of the United Arab Emirates as a Legal Advisor on International Law and Treatise.
Justice Maged is also a lecturer in criminal law and criminal procedural law at the Faculty of
Sharí‘ah and Law, al-Azhar University in Cairo, and founding member of the research
group ‘Islám, Law and Modernity’ at Durham Law School. He has advised the ICC Office
of the Prosecutor and the Arab League of States on international criminal law issues. His
publications include books and articles, in Arabic and English, on international criminal law,
Islámic law, justice reform, transitional justice, combating extremism, terrorism and combat-
ing human trafficking. He holds a Bachelor of Law from Alexandria University; LL.M. on
Internationalization of Crime and Criminal Justice from Utrecht University; and a Diploma
on International Law and Organisation for Development from the Institute of Social Studies,
The Hague. The author thanks co-editor Morten Bergsmo for his conceptual input. The au-
thor also thanks Fathi M. Abdelraouf Ahmed, Arabic translator and reviser, for his advice on
the translation of the Caliphs’ Letters on the Judiciary referred to in this chapter, and Ms.
Rawan Maged, Bachelor of Political Science, the American University in Cairo and LL.B.
Cairo University, for her research assistance. TOAEP has adopted the Transliteration System
approved at the 10th International Congress of Orientalists held in Geneva in 1894, and that
has been implemented here for Arabic terms to the extent feasible.
1
Al-Tirmidhi, Sunan al-Tirmidhi, Sheikh Saleh Al-Sheikh (ed.), Saudi Ministry of Islamic
Affairs, Dawah and Guidance, ḥadíth no. 1325, p. 321.

wark to the public against any encroachments on rights and

freedoms under the law. 2
From the earliest times, in all cultural and religious traditions, the
judge has been perceived as an individual of high moral stature, possessing
qualities distinct from those of ordinary individuals and is subject to more
rigorous constraints than others. Thus, judges are required to observe a
form of life different from that of the rest of the community, in order to
preserve their integrity. 3 Accordingly, in discharging their judicial duties,
judges should adhere to a combination of values and characteristics that are
essential for the very legitimacy of the judicial function. Judges should per-
form their functions with integrity, impartiality and independence as well
as diligence. 4 This approach has been asserted in various documents of the
United Nations (‘UN’) and other respected organisations. For the purposes
of this chapter, and without prejudice, two documents have singled out for
particular consideration, namely the Bangalore Principles of Judicial Con-
duct 5 and the Bangalore Draft Code of Judicial Conduct of 2002. 6 These
principles are articulated around six basic values and qualities: ‘independ-
ence’, ‘impartiality’, ‘integrity’, ‘propriety’, ‘equality’, and ‘competence
and diligence’.
It is recognised at both the international and domestic levels that in-
tegrity is essential for the proper discharge of the judicial office. 7 A judicial
system which operates without regard to professional ethics standards is
unable to build and retain public trust in the fairness and objectivity of its
decisions and outcomes.
2
United Nations Office on Drugs and Crime (‘UNODC’), Commentary on the Bangalore
Principles of Judicial Conduct, Vienna, 2011, p. 5.
3
Ibid., p. 117.
4
UNODC, Resource Guide on Strengthening Judicial Integrity and Capacity, Vienna, 2007,
p. 127.
5
Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Na-
tions Congress on the Prevention of Crime and the Treatment of Offenders held at Milan
from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32
of 29 November 1985 and 40/146 of 13 December 1985 (https://www.legal-tools.org/doc/
rnabsy/).
6
The Bangalore Draft Code of Judicial Conduct of 2001, adopted by the Judicial Group on
Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices
held at the Peace Palace, The Hague, November 25–26, 2002 (‘Bangalore Principles of Ju-
dicial Conduct’) (https://www.legal-tools.org/doc/xwake8/).
7
Ibid., Value 3.

3. Sharí‘ah Sources and Reflections on Integrity
From a practitioner’s point of view, judicial integrity is a key judicial

value and comes at the heart of the judicial profession. However, it should
be noted that the responsibilities and the public’s perception of the stand-
ards of integrity to which judges should adhere to are continuously evolv-
ing. 8 Therefore, it is important to understand the sources and pillars of in-
tegrity from different perspectives.
In the Muslim world, religion has great influence, not only on the so-
cietal attitudes, but also on the legal system governing their relations with
each other. 9 In the early Islamic era, and recently in some Arab and Islamic
countries, Muslim judges have rendered decisions according to the provi-
sions of Sharí‘ah.
As one of the main legal traditions of humanity, Sharí‘ah emphasises
the notion of justice, highly regards the judicial function, and supports ju-
dicial integrity. In general, Sharí‘ah allocates special attention to justice
and addresses the judicial traditions and ethics required to uphold the rule
of law. Captivatingly, Sharí‘ah provides detailed provisions on judicial eth-
ics that regulate the conduct of judges in a precise manner that could be
considered as an ‘Islamic Code of Judicial Ethics’. 10 The provisions of
such code are strewn in different (primary) sources of Sharí‘ah: Qur’án, 11
Sunnah, 12 Ijmā‘ 13 and Qiyās. 14
8
Courts and Tribunals Judiciary, “Guide to Judicial Conduct – Revised March 2018 (Updated
March 2020)”, Judiciary UK (available on its web site).
9
Sharíʿah, in general terms, also contains the rules by which the Muslim nation, in the broad-
est sense of the word, is organised, and it provides all the means necessary for resolving
conflicts among individuals, between individuals and the state, as well as between the states
themselves.
10
Various justice systems have drafted Codes of Judicial Conduct. In some Member States,
violations of the code may result in sanctions, including in Italy and in the United States
(both at the federal and state levels). In other Member States, the codes of judicial conduct
are not conceived as a set of enforceable rules, but rather as an ideal guide of judicial behav-
iour.
11
The Qur’án is the words of God conveyed to the people by his Messenger (Prophet Mu-
hammad (‫)ﷺ‬, the earliest and the central religious text of Islám. Many Western scholars con-
sider the Qur’án – in addition to containing timeless moral and spiritual injections – as a
rich repository of guidance on real-life situations, with injunctions regulating a vast field,
that also covers rules on adjudication and the responsibility of the judiciary. See, for exam-
ple, Onder Bakircioglu, “The Principal Sources of Islamic Law”, in Tallyn Gray (ed.), Islam
and International Criminal Law and Justice, Torkel Opsahl Academic EPublisher, Brussels,
2018, p. 20.
12
The Sunnah is Prophetic ḥadíth (sayings) as well as practices and deeds attributed to the
Prophet Mohammad, that were narrated to us via the Prophet’s companions and their succes-

Both the Qur’án and the Sunnah are the principal primary sources of
Sharí‘ah. 15 Noticeably, Sharí‘ah’s jurisprudence (fiqh) 16 has vividly as-
sembled and interpreted those provisions to formulate such code. As we
will see below, early-classical Muslim jurists require ‘extra judicial quali-
ties’ more than the ‘standard criteria’ embedded in national and internation-
al instruments for the appointment in judicial positions, and integrity comes
at the top of this list of qualities. In fact, integrity in Sharí‘ah is a legally
binding requirement to be able to serve as a judge.
An international high-ranking civil servant has noted that “while
there are neutral countries, there are no neutral men”. 17 In this chapter, I
argue that in Islamic traditions such men do exist. We will see examples of
judges who disobeyed great rulers to protect their integrity and independ-
ence, without any regard of indebtedness towards anyone.
sors. The Sunnah constitutes the normative pattern of life established by the Prophet Mu-
hammad (‫)ﷺ‬. The Sunnah in the form of ḥadíth is supplementary to the Qur’án itself. It
helps to explain and clarify the Qur’án and provides practical applications of its teachings.
13
Ijmā‘ is the consensus of the Companion of the Prophet and later on the Muslim jurists on a
certain issue.
14
Qiyās (analogy) is a recognised source of Sharí‘ah that can be utilised by Muslim jurists and
scholars to reach legal norms.
15
For more information, see Adel Maged, “The Impact of Religion on Military Self-Interest in
Accountability: A Sharí‘ah Perspective”, in Morten Bergsmo and SONG Tianying (eds.),
Military Self-Interest in Accountability for Core International Crimes, Torkel Opsahl Aca-
demic Publisher, Brussels, 2015, pp. 141–166 (http://www.toaep.org/ps-pdf/25-bergsmo-
song-second).
16
Fiqh is a process by means of which jurists derive sets of guidelines, rules and regulations
from the rulings laid down in the Qur’án and the teachings and living example of the Proph-
et Muhammad (‫)ﷺ‬, the Sunnah. The science of fiqh is a discipline, intellectual-
methodological application, and a set of tools for other sciences that is used to reach rulings
in Sharí‘ah questions, mostly through ijtihád. Over the centuries, fiqh has been formulated
and elaborated upon by successive generations of learned jurists, through interpretation,
analogy, consensus and disciplined research. While the principles of the Qur’án and the
Sunnah are permanent, it is the nature of Islámic jurisprudence to facilitate for human beings
the application of those principles to their daily-life activities and dealings. In other words,
Sharí‘ah fiqh is the human understanding and implementation of Sharí‘ah and the process
by which Muslim jurists (fuqaha) extract legal rulings (ahkam) from the primary sources of
Islám (Qur’án, Sunnah, Ijmā and Qiyās). It encompasses the vast corpus of juristic scholar-
ship and jurisprudential texts produced by early and modern Muslim jurists.
17
See Morten Bergsmo, Wolfgang Kaleck, Alexander Muller and William H. Wiley, “A Prose-
cutor Falls, Time for the Court to Rise”, FICHL Policy Brief Series no. 86 (2017), Torkel
Opsahl Academic Publisher, Brussels, 2017, p. 4 (https://www.toaep.org/pbs-pdf/86-four-
directors/).

Moreover, one will be surprised to know the strict conditions Sha-

rí‘ah requires of a person to be appointed in the judiciary. The wealth of
information that Islamic jurisprudence provides on different aspects of
judges’ qualities and the abundance of books and chapters that were written
by early-classical Muslim jurists are also remarkable. These sources should
have a significant impact on the emerging body of judicial ethics that gov-
ern the administration of justice at the international level.
Some contemporary Western scholars consider integrity as ‘moral
character’, and they refer to Articles 36(3)(a) and 42(3) of the Rome Statute
of the International Criminal Court (‘ICC Statute’) to support this view. 18
Indeed, such characterisation converges with Sharí‘ah sources, which also
recognise it as ‘moral character’, reflecting an ‘ethical value’ required for
those who occupy judicial office. Accordingly, a judge or prosecutor who
has such ‘saintly character’ lifts the entire institution, and underpins public
confidence in the judiciary. This is where spirituality and justice meet, and
this, I fear, has not been a priority in international criminal justice since the
1990s.
Some Western scholars have raised concerns about alleged integrity
problems within the current international justice system, 19 especially after
the announcement made by the International Criminal Court Bar Associa-
tion (‘ICCBA’) of “serious allegations of improper and potentially illegal
activity by former ICC Prosecutor Luis Moreno-Ocampo”. 20 This chapter
is designed to introduce the basic Sharí‘ah concepts that govern judicial
integrity to Western readers, and support the ongoing efforts that aim to
consolidate the concept in the international justice system, in accordance
with the highest applicable standards of integrity in different legal tradi-
tions. These efforts are important for more reasons than what may first
meet the eye. It would be unwise to underestimate the significance of integ-
rity in the ranks of high officials of international criminal justice among the
populations in mainly-Muslim countries, as well as other societies that may
seem more ‘traditional’ (combined, these countries may well represent
more than half the world’s population).
18
Ibid., p. 3.
19
Ibid., p. 2.
20
ICCBA Statement on Allegations Against Former ICC Prosecutor, 29 November 2017.

3.2. Methodology
It is admitted among the majority of Western legal scholars that there is no
consensus on the meaning of judicial integrity, nor on its functioning in
practice. Conspicuously, some contend that integrity discourses differ from
one jurisdiction to another, and that the meaning of the term itself, differs
significantly per profession and, in the case of judges, per jurisdiction. 21
This has had a great impact on the comprehension and the adoption of the
term at the international level. The term has not yet been comprehensively
addressed in a single document issued by existing international courts.
To address this loophole, I will revisit Sharí‘ah sources to see how
they approach the judiciary in general, and, specifically, how they address
the concept of judicial integrity. Hence, I will carefully inquire into those
sources to explore whether Sharí‘ah is a norm of its own or a holistic con-
cept that encompasses other norms and/or values; and examine whether
integrity is a legally binding requirement and a prerequisite quality for a
person to assume the judicial position. This requires delving into early-
classical and original literature by eminent Sharí‘ah jurists (hereafter,
‘classical Sharí‘ah literature’), as experience has proven that intermediary
references on Sharí‘ah, especially those written in non-Arabic languages,
may not have authenticity and confidence, and could disrupt the real mean-
ing of the original sources, or at least “evaporate their authentic aroma”. 22
Unfortunately, the intermediary non-Arabic literature on Sharí‘ah very of-
ten cannot fully convey the letter and spirit of the text to the reader. Ac-
cordingly, it is preferable for those who research Sharí‘ah’s sources and
jurisprudence (fiqh) to have an excellent command of the Arabic language
and to be well acquainted with Sharí‘ah sciences in order to be able to
search and interpret provisions in accordance with required scholarly
standards. As we will see below, there is ijmā‘ among Muslim jurists that
one who practices ijtihád 23 should be skilful in the Arabic language, as the
original sources of Sharí‘ah are in Arabic. Unfortunately, a very small por-
tion of the tools of knowledge required for ijtihád is available in other lan-
guages.
21
See Jonathan Soeharno, “Is judicial integrity a norm? An inquiry into the concept of judicial
integrity in England and the Netherlands”, in Utrecht Law Review, vol. 3, no. 1, 2007, p. 8.
22
Jeffrey Einboden, Nineteenth-Century U.S. Literature in Middle Eastern Languages, Edin-
burgh University Press, 2013, p. 55.
23
Ijtihád is an individual and independent juristic reasoning exercised to provide answers to
legal or other religious questions that there is no basis in the Qur’án and Sunnah.

Despite my excellent command of the Arabic language, one chal-

lenge that I encountered when I decided to write on this topic was to identi-
fy the best methodology, through which I can convey to the Western read-
ers the correct Sharí’ah jurisprudential terminology, norms and rules that
address the topic of judicial integrity.
To ensure credibility of my work, this chapter mainly relies on clas-
sical Sharí’ah literature, including learned treatises written by eminent
Sharí’ah jurists in Arabic. However, I would like to mention that the reli-
gious texts addressing the topic in Sharí’ah sources are written in classical,
eloquent Arabic, enriched with metaphors, orthodox terms, and complex
expressions that are, sometimes, difficult to comprehend, even for a profi-
cient Arabic speaker. Moreover, Arabic words can have a variety of differ-
ent meanings depending on the context, and didactical symbols used in the
Arabic language can change the meaning of a word significantly. Therefore,
to ensure that I transfer the correct meaning of the religious texts from Ara-
bic into English, I have consulted on the meaning and translation of those
texts with translation experts and Islamic scholars to ensure accuracy and
that the translation is reliable and close to the original.
My focus in this chapter will be on the following classical Sharí‘ah
sources that are considered to be the principal references for those interest-
ed in studying the central rules of adjudication and judicial ethics in Sha-
rí‘ah:
1. The Message of Caliph Umar Ibn Al-Khaṭṭáb on the Judiciary, 24
which is considered a judges’ charter and an Islamic code of judicial
conduct. 25 Early-classical Sharí‘ah jurists called it “the judges’ poli-
cy” and “the judicial constitution”. 26
2. The Message of Alī Ibn Abī Ṭālib, the fourth of the rightly-guided
Caliphs, to Mālik Al-Ashtar on the Judiciary, in which he instructed
24
See Appendix I for further details. To review the original texts of the Message in Arabic, see
Imam Al-Mawardi, Al-Ahkam as-Sultaniyyah, Ahmad Mubarak Al-Baghdadi (ed.), Dar Ibn
Qutaibah, Kuwait, 1989, pp. 95–96; Ibn Khaldun, Muqaddimah Ibn Khaldun, Abdallah Mu-
hammad al-Darwish (ed.), first edition, Dar Yareb, Damascus, 2004, vol. 1, pp. 402–403.
25
The message of Umar Ibn al-Khattab on the Judiciary is known among Muslim scholars as
the first comprehensive Islámic directive on the judiciary. Many consider it as the basis of a
functional Islámic judicial system and at the same time the code of conduct of judges, as it
gave comprehensive instructions in regard of conduct of al-qāḍī.
26
Al-Shahīd Al-Sadr, sharh Adab Al-Qāḍī Al-Khaṣṣāf (Commentary on Adab Al-Qāḍī by Al-
Khaṣṣāf), Mohie Eldien Sarhan (ed.), first edition, Iraqi Ministry of Endowments and Reli-
gious Affairs, Bag̲h̲dād, 1977, vol. 1, pp. 213–214.

him of the qualities that he should observe when selecting a person to

act as a judge. 27
3. Reliable ḥadíth reports, which were narrated by the Prophet’s com-
panions and underwent a rigorous process of authentication, for ex-
ample, the commentaries on the Sunnah, written by eminent classical
Sharí‘ah jurists such as Sahih Muslim and Sunnan Abī Dāwūd.
4. The renowned Islamic jurisprudential exegesis on Adab Al-Qāḍī, re-
ferred to in some contemporary Western literature, in the English
language, as ‘etiquette of the judge’, written by early eminent Mus-
lim jurists, for example, Imam Al-Khaṣṣāf, 28 Imam Al-Ṭabarí 29 and
Imam Ibn AbīʾAl-Dam. 30
Obviously, reference will also be made to relevant verses of the
Qur’án. Yet, we have to bear in mind that the Qur’án is written in a highly
symbolic and classical, eloquent form of the Arabic language. Accordingly,
translating verses of the Qur’án requires a profound understanding of its
meaning and an ability to reflect those meanings into English. As a matter
of fact, due to the sacred nature of the Qur’án, all translation attempts are
considered interpretations of the meanings, rather than an actual translation
27
See Appendix II for further details. To review the original texts of the Message in Arabic,
see Alī Al-Salaby, Alī Ibn Abī Ṭālib: shaghsyaton wa asroh (Alī Ibn Abī Ṭālib: His Personal-
ity and Era), in History of Rashid Caliph Series, Maktabat Al-Sahaba, UAE, 2004, vol. 2,
p. 369. This Letter is to be considered as an original reference for those who study Sharí‘ah
jurisprudence, and is found under ‘Letter 53’ of the famous Nahj al-Balāgha collection (The
way of Eloquence), which contains 240 sermons given by Caliph Alī Ibn Abī Ṭālib dealing
with a wide variety of topics including human existence, relationship with God, building a
God-fearing personality, and other reflections upon historical incidents.
28
Imam Abú Bakr Aḥmad Ibn Umar Ibn Mahir al-Shaybānī, known as Al-Khaṣṣāf, an early-
classical Muslim scholar, belongs to the Hanafite School of fiqh, and author of voluminous
compendiums of early Islámic history.
29
Imam Ahmmad Ibn Abi Ahmmad Abú Abbas Al-Ṭabarī, known as Ibn Al-Kāss, an early-
classical Muslim scholar, belongs to the S̲h̲āfi School of fiqh, and author of large compendi-
ums of early Islámic history and Qurʾānic exegesis.
30
Imam Abū Ishāq S̲h̲ihāb Al-Dīn Ibrāhīm Ibn ʿAbd Allāh al-Ḥamawī, better known as Ibn
AbīʾAl-Dam , an early-classical Muslim scholar, belongs to S̲h̲āfiʿī School of Islámic fiqh,
and was the chief Islámic judge in his native Ḥamāt, Syria. F. Rosenthal, “Ibn AbīʾAl-Dam”,
in P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel and W.P. Heinrichs (eds.), Ency-
clopedia of Islám, second edition, Brill Academic, 1986.

of the holy text. Hence, I will try my best to simplify the meaning of its
verses to the reader, without disrupting its original connotations. 31
3.3. Adab Al-Qāḍī: A Comprehensive Resource in Sharí‘ah on the
Judiciary
Adab Al-Qāḍī refers to a compendium of early-classical Islamic jurispru-
dential literature written by renowned Muslim jurists belonging to all Is-
lamic schools of thought. The authors of Adab Al-Qāḍī gathered and com-
mented on various legal and judicial issues in light of the primary sources
of Sharí‘ah, with detailed explanation, in accordance with established rules
of research in Islamic fiqh.
Adab Al-Qāḍī is an important original jurisprudential source of Sha-
rí‘ah that studies in depth the institution and discipline of judgeship in
Muslim societies. It expounds the basic principles of the Islamic judicial
system and the function of the judiciary, for instance, court proceedings,
litigations, and the taking of testimony. It also addresses issues related to
the qualifications and qualities of the judges, 32 their appointment, and re-
moval from office. It goes further to explore the relationship between al-
qāḍī and a ruler, and sheds some light on judicial integrity questions, such
as the nature of judgeship, the manners and propriety of judges, in particu-
lar, what they must do, what they may do, what is forbidden to them, and
what is abhorred. Noticeably, it covers the ethics and conduct of judges and
is designed to enable judges to administer justice on the foundations of
Sharí‘ah sources. 33
Indeed, early-classical Muslim jurists have left great treasures of le-
gal knowledge, awaiting to be explored. The wealth of knowledge on al-
qāḍī behaviour in his daily life and conduct while undertaking his judicial
function that Adab Al-Qāḍī presents is broad, comprehensive and needs
more in-depth research. Each treatise is interspersed with actual cases and
models that cover these topics. As stated in one contemporary English
31
The author used several translations of the Qur’án on a case-by-case basis depending on his
agreement on the strategy used in transferring the meaning of each verse.
32
Ibn AbīʾAl-Dam, Adab Al-Qāḍī, 1984, first edition, Iraqi Ministry of Endowments and Reli-
gious Affairs, Bag̲h̲dād, vol. 1, p. 6.
33
Ibid., pp. 136–137.

source commending Adab Al-Qāḍī: “It is important for the wealth of mate-
rials it offers the practitioner in terms of both procedures and substance”. 34
3.4. Methodological Consideration Regarding the Meaning of Adab
Al-Qāḍī
Some authors have endeavoured to write commentaries on Adab Al-Qāḍī in
contemporary Western scholarship. However, some have committed a
methodological mistake by referring to Adab Al-Qāḍī as “etiquette of the
judge”. Unfortunately, this translation does not reflect the true meaning or
the content and subject-matter of Adab Al-Qāḍī.
In classical Arabic dictionaries, the word ‘adab’ has two connota-
tions. First, in literature which mainly refers to the products of the human-
thinking in different fields of knowledge. In other words, it refers to sophis-
ticated collections of spoken and written works on certain or particular sub-
jects, that may be classified according to a variety of systems and fields of
knowledge, which are deemed to have artistic or intellectual value. 35 It may
also refer to articulated works of poetry and prose of lasting artistic merits,
which require the knowledge of Arabic and Sharí‘ah sciences. 36 Second,
literally, it means politeness and propriety. 37 In his renowned Arabic dic-
tionary al- Qamous al-Muheet, al-Fairūzābādī refers to the word ‘adab’ as
“good manners”. 38
Adab Al-Qāḍī refers to sophisticated collections and literature written
on the art of adjudication that focus on the conduct of Al-Qāḍī. As one au-
thority explained, Adab Al-Qāḍī refers to a “compendium of the principles
of adjudications”. Therefore, the title Adab Al-Qāḍī does not reflect only
the etiquette or manners of al-qāḍī, but it covers different branches of sci-
ences related to the judiciary and legal proceedings before the courts.
Linguistically, the word ‘etiquette’ in English literature refers to a set
of rules or customs for polite behaviour in particular in social groups or
34
Chibli Mallat, “Comparative Law and the Islámic (Middle Eastern) Legal Culture”, in Ma-
thias Reimann and Reinhard Zimmermann (eds.), The Oxford Handbook of Comparative
Law, second edition, Oxford University Press, 2019, p. 630.
35
See Al-Waseet Dictionary, second edition, Arabic Language Academy, vol. 2, 1985, pp. 9–
10.
36
See Ibn Khaldun, 2004, vol. 2, p. 376, see above note 24.
37
Ibid., pp. 9–10.
38
Al-Fairūzābādī, Al- Qamous al-Muheet, third edition, The General Egyptian Book Organisa-
tion, vol. 1, 1977, p. 36.

social situations, or, in other words, as stipulated in Encyclopaedia Britan-

nica, a system of rules and conventions that regulate social and profession-
al behaviour. 39 Such a system is usually built and formulated on social ru-
brics, which are changing and subject to alteration, while Adab Al-Qāḍī
represents permanent values that find their roots in established Sharí‘ah
sources, which have a divine nature. 40 As has been shown, “etiquette of the
judge” is an incorrect translation of Adab Al-Qāḍī both in literal meaning
and in scope.
3.5. The Concept of Judicial Integrity?
As mentioned above, behind the single word ‘integrity’ lurks several dis-
tinct issues and values that could be disentangled. As will be shown later,
according to its meaning in the classical Arabic language and in Sharí‘ah,
the concept of judicial integrity is a holistic notion that covers various judi-
cial qualities. Hence, after explaining the meaning of the concept in the Ar-
abic language and in Sharí‘ah, I will distinguish its various components,
which reflect respected values and qualities. Then I will address each of
them from a Sharí‘ah perspective. To show the extent to which Sharí‘ah
rules on judicial integrity conform to, and mostly exceed, contemporary
standards of judicial integrity, I will compare these rules to those included
in the above-identified international documents that deal with the concept
of judicial integrity, primarily the Bangalore Principles of Judicial Conduct.
To facilitate the presentation of the Sharí‘ah rulings addressing the
concept of judicial integrity, I will make a distinction between personal and
professional judicial integrity. For conformity with the recent international
standards addressing the topic, it is understood that for the purpose of this
chapter, the principle of integrity does not only apply to judges, but also to
those holding prosecutorial positions in the international justice system.
However, before exploring the components of the concept in differ-
ent sources of Sharí‘ah, I will shed some light on the status of Sharí‘ah
among other legal traditions, as well as the status of the judiciary as such in
Islam.
39
“Etiquette”, Encyclopaedia Britannica (available on its web site).
40
See, for example, Mohamed Emam, Ausoul Al-Hesba in Islám, Dar Al-Hedayah, 1986, p. 71.

3.6. The Status of Sharí‘ah: An Overview

It is nowadays admitted that Islamic law has a significant impact not only
on the Muslim world, but also on the international community as a whole,
as it remains one of the recognised legal systems of the world today. 41
Moreover, Sharí‘ah is the primary or one of the main sources of legislation
in the majority of Arab States, and contains the rules by which the Muslim
nation, in the broadest sense of the word, is organised. It provides the
means necessary for resolving conflicts among individuals, between indi-
viduals and the State, as well as between States themselves. 42 Obviously, it
is recommended that we look at the influence of Sharí‘ah when examining
issues related to justice and the judicial function.
We have to bear in mind that the term ‘Sharí‘ah’ is different in
meaning from the term ‘Islamic law’. ‘Sharí‘ah’ has a broader meaning
than ‘Islamic law’. ‘Sharí‘ah’ entails divine-made rules by God and His
Messenger, while ‘Islamic law’ refers to a heterogeneous body of human-
made interpretations of Islam’s sacred texts by early and contemporary Is-
lamic jurists. These include legal principles and doctrines, derived from the
Qur’án, Sunnah and by using jurisprudential reasoning (fiqh), formulated
by early-classical Muslim jurists, as well as diverse rulings implemented by
pre-modern Sharí‘ah courts and scholars, based on ‘Sharí‘ah’ primary
sources. Accordingly, in our modern era, there is an accumulation of all
these human efforts that constitute a rich Muslim legal tradition yet to be
investigated by Western academia. Conspicuously, general principles of
law derived from the Sharí‘ah legal system could provide a major source
of jurisprudence in the international field.
Although Islamic law remains one of the main legal systems of the
world today – one that governs the lives of a substantial portion of the
world’s population – it has so far been poorly represented. The experience
of recent years has shown that examples of meaningful research in the are-
as of Islamic law are few, even though it can provide answers to countless
legal questions currently confronted by Western academia, including ques-
41
See, René David and John E.C. Brierley (eds.), Major Legal Systems in the World Today: An
Introduction to the Comparative Study of Law, second edition, Stevens and Sons, London,
1978, p. 421; Mashood A. Baderin, “Effective Legal Representation in ‘Shari’ah’ Courts as
a Means of Addressing Human Rights Concerns in the Islámic Criminal Justice System of
Muslim States”, in Eugene Cotran, Martin Lau and Victor Kattan (eds.), Yearbook of Islámic
and Middle Eastern Law, vol. 11, no. 1, Brill, Leiden, 2004, pp. 135–67.
42
Maged, 2015, p. 142, see above note 15.

tions on the concept of judicial integrity and their implications for the in-
ternational justice system.
Succinctly, classical Muslim jurists have formulated a coherent sys-
tem of Islamic legal jurisprudence that covers issues related to justice and
the qualifications of judges, and, interestingly, addressing the core issues of
integrity in justice. Accordingly, it is imperative to look at the sources of
Sharí‘ah when examining this central concept. Before doing so, as a logical
development of the topic under research, I will first shed some light on the
status of the judiciary as such in Sharí‘ah.
3.7. The Importance of Justice in Sharí‘ah
Justice in Islam means giving equal rights and treatment to others. The
meaning of justice in Arabic is close to ‘equality’ in the sense that it creates
a state of equilibrium in the distribution of rights and duties. Justice in Is-
lam is a religious duty, and it is a cornerstone of the tenets of Islam. It is
also a basic objective and a supreme virtue, as stipulated in the Qur’án and
Sunnah. No wonder that al-ʿAdl (The utterly just) is one of the 99 divine
Names of God, stipulated in the Qur’án and the Sunnah, called in Arabic
asmāullah al-ḥusnā.
It is forbidden in Islam to punish unjustly or to do injustice to others. It is
narrated by the Prophet Muḥammad (‫ )ﷺ‬that God said:
O My worshipers, I have forbidden injustice for Myself and
forbade it also for you. So, avoid being unjust to one anoth-
er. 43
Upholding this concept, Imam Ibn Taymiyyah 44 said: “God upholds
the just State even if it is disbelieving, and does not uphold the unjust one
even if it is a Muslim believing State”. 45
As we will see below, God commanded the Prophet Muḥammad (‫)ﷺ‬
to promote and observe justice, as a divine duty and an attribute of human
personality, which carries a great burden. In this context, the Prophet
43
Sahih Muslim, Sharh al-Nawāwy, Kortoba Foundation Publisher, Cairo, first edition, 1999,
vol. 16, ḥadíth no. 2577, p. 199.
44
Taqī Ad-Dīn Aḥmad Ibn Taymiyyah, early-classical Sunni Muslim scholar.
45
Imam Ibn Taymiyyah, majmou fatawa Ibn Taymiyyah (The Compendium of Juristic Opin-
ions of Emam Ibn Taymiyyah), Abdelrahman Kassem (ed.), King Fahd Complex for Print-
ing The Holy Quran, Saudi Ministry of Islámic Affairs Dawah and Guidance, KSA, 2004,
vol. 28, p. 63.

Muḥammad (‫ )ﷺ‬warned his followers of the burden of delivering justice.

He said:
You submit your disputes to me, and I am only human. Per-
haps some of you may be more eloquent in presenting your
case than others, so I rule in your favour because of what I
hear from you. If I pass a judgement in favour of one of you
that detracts from his brother’s rights, then he should not take
it, because it is a piece of fire that is given to him which he
will bring forth on the Day Resurrection. 46
The Qur’án goes further to instruct the believers to disregard their
emotional predisposition towards their enemies and be just with them. In
surat Al-Ma’idah, God said:
O you who have believed, be persistently standing firm for
God, witnesses in justice, and let not the hatred of a people
swerve you away from justice. Be just, for this is closest to pi-
ety. And fear God; indeed, God is Acquainted with what you
do. 47
3.8. The Status of the Judiciary in Sharí‘ah

Early-classical Muslim jurists underscored that the basis of the necessity of
the judiciary in the Islamic nation is stipulated in the Qur’án, Sunnah and
Ijmā‘. In addition, they considered it as a religious duty. They referred to
many verses in the Qur’án, in which God advocates justice and requires
His messengers to observe it as a religious duty. And thus, they stressed
that the administration of justice is an attribute of God and is considered as
a moral virtue. 48
Imam Al-Mawardi asserts in his famous book Al-Ahkam as-
Sultaniyyah that the existence of a (judicial) power to uphold justice is es-
sential to the Muslim community. 49 Imam Ibn Qudāmah 50 refers to the fol-
46
Sahih Muslim, Sharh Al-Nawāwy, Egyptian Press Al-Azhar, Cairo, first edition, 1930, vol.
12, p. 4–6; Imam Mālik Ibn Anas, Al-Muwatta, Dar Al-Taeseel, first edition, 2016, vol. 2,
p. 183.
47
Qur’án, surat Al-Ma’idah, 5:8.
48
Al-Mawardi, 1989, p. 100, see above note 24.
49
Ibid., p. h.
50
Imam Ibn Qudāmah Al-Maqdīsī Muwaffaq Al-Dīn Abū Muḥammad ʿAbd Allāh Ibn Aḥmad
Ibn Muḥammad is an early renowned Sunni Muslim jurist who contributed many important
treatises on jurisprudence and religious doctrine, including one of the classical works of
Hanbali school of jurisprudence, Al-Mug̲h̲nī.

lowing ḥadíth of the Prophet Muḥammad (‫ )ﷺ‬as another base for the ne-
cessity of the judiciary in the Muslim community:
When a judge delivers a judgement, having striven to decide
correctly and is right, then he will receive double the reward,
and if he delivers a judgement, having striven to decide cor-
rectly but erred, then he receives a single reward. 51
This means that a fair and righteous judge is rewarded in all cases; yet, he
has to exert his best efforts to reach a judgement.
Captivatingly, the Prophet (‫ )ﷺ‬described the judicial function as one
of the blessings for which envy is permitted, as he said:
There should be no envy except in two cases: a man to whom
God has given wealth and granted him the authority to spend
it in a rightful manner and a man to whom God has given wis-
dom and he judges and acts on the basis of it. 52
Acknowledging the importance of the judiciary and its supreme sta-
tus and solemn message, Umar Ibn Al-Khaṭṭáb used to send messages to
the judges he had appointed all over the Muslim nation, 53 which included
advice to them. 54 He addressed the function of the judiciary and the con-
duct of judges in his famous message to Abú Moussa Al-Ash‘ari. The ma-
jority of Islamic scholars consider it as the judges’ charter, and some call it
‘the Book of Judicial Policy’. In the first paragraph of this message, Caliph
Umar Ibn Al-Khaṭṭáb stated that: “The right to adjudication is an absolute
(religious) duty and a followed Prophetic Tradition”. In his renowned
“Message to the Judiciary”, Ibn Khaldun asserts the divine nature of judg-
ing between people, which requires a complete devotion to God and His
support. 55
51
Sahih Muslim, Sharh al-Nawāwy, Dar al-Shāb, vol. 4, ḥadíth no. 13, p. 310; Imam ibn
Qudāmah, Al-Mug̲h̲nī, commentary by Sheikh Mahmoud Fayed, Cairo Library, Cairo, vol.
10, p. 32.
52
Al-Shahīd al-Sadr, 1977, p. 72, see above note 26.
53
For more information, see, Mahe Abd Elmajid Aboud, “The Juridical Bases in the Letter of
Umar Ibn al-Khattab”, vol. 1, Dar Al-Kotob Al-Ilmiyah, Beirut, 2009, p. 11.
54
Sliman Mohamed El-Tamawy, Judicial Policy in the Umar Ibn Al-Khaṭṭáb Epoch and its
Impact on our Modern Era, Dar Elfekr El-Araby, Cairo, 1969, p. 329.
55
See Ibn Khaldun, mozil al-malam an hukam al-anam, Foad Abdelmonem Ahmed (ed.), first
edition, Dar al-Watan, Riyadh, 1996, p. 105.

Imam Ibn Qudāmah asserted the importance of the existence of a ju-

dicial system in a nation by saying: “The Muslims unanimously agreed that
a judicial system must be established to adjudicate between people”. 56
In Sharí‘ah, the judiciary is considered an important pillar in the Is-
lamic nation and accordingly has supreme religious status. It is not only a
moral virtue but also an obligation to be fulfilled under all circumstances. It
is stated in the Qur’án: “Indeed, God commands you to render trust to
whom they are due and when you judge between people, judge with justice.
Excellent is that which God instructs you. Indeed, God is ever Hearing and
Seeing”. 57
As a result of their divine mission, judges should discharge their du-
ties with the utmost form of justice. In various verses of the Qur’án, God
advised His Messengers to judge between people fairly: “And if you judge
(O Muhammad), judge between them with justice. Verily, God loves those
who act justly”. 58
However, justice needs a functional judicial system to be achieved.
Early Muslim jurists consider the following verses of the Qur’án to be the
bases of such a system: “O David, verily we have placed you as a successor
on Earth, so judge between people in truth”. 59
Elaborating on the previous concept, Imam Ahmad, one of the most
prominent classical jurists of Islam, once said: “People have to have a judi-
cial authority or their rights will disappear”. 60 As stipulated in early Islamic
25F
jurisprudence, the main goal of such a system is to “explore Sharí‘ah rul-

ings, reinforce these rulings and adjudicate disputes”. 61 Accordingly, the
256F
science of judgeship has a supreme status in Islamic jurisprudence. 62 257F
3.8.1. Sharí‘ah on the Appointment of Judges

In the early era of the Rightly Guided Caliphs (the successors of Prophet
Muḥammad), the position of al-qāḍī was instituted by the Caliph himself,
56
Ibn Qudāmah, p. 32, see above note 51.
57
Qur’án, surat An-Nisaa’, 4:58.
58
Qur’án, surat Al-Ma'idah, 5:42.
59
Qur’án, Surat Sad, 38:26.
60
Al-Syuti al-Raihabany, mataleb oly al-nahy fe sharh ghayet al-montha, Sheihk Hassan al-
Shaty (ed.), first edition, the Islámic Bureau, Damascus, 1961, vol. 6, p. 454.
61
Ibid.
62
AbīʾAl-Dam, 1984, p. 126, see above note 32.

who was responsible for selecting and appointing judges, governing their
affairs, supervising their work, as well as protect their independence. Sub-
sequently, the appointment and removal of judges was the responsibility of
the Muslim nation’s ruler. He was responsible for supervising their behav-
iour and monitoring their performance. In all cases, it was considered a re-
ligious duty for the ruler to provide for the administration of justice
through the appointment of judges. 63
At that time, the al-qāḍī court was a single-judge court with general
jurisdiction, hence al-qāḍī was competent to adjudicate all kinds of litiga-
tions brought before him. His basic function was to settle disputes and allo-
cate rights to litigants, in accordance with the injunctions (both command-
ments and prohibitions) of the divine rules of Islamic law. In other words,
al-qāḍī must apply the rules stipulated mainly in the Qur’án and Sunnah,
or resort to ijtihád when the Qur’án and Sunnah are silent.
As mentioned before, one of the most comprehensive, while succinct,
instruments in Sharí‘ah that contains the required criteria for the appoint-
ment of judges is the Message of Caliph Alī Ibn Abī Ṭālib to his commis-
sioner in Egypt, Malik al-Ashtar on the Judiciary, in which he instructed
him of the qualities that he should observe when selecting a person to act
as qāḍī. 64
3.8.2. The Status of Judges in Sharí‘ah
The foregoing has established that the existence of a functional judicial
system is imperative for the Muslim nation. However, such judicial system
requires highly qualified judges. The existence of judges is considered by
Islamic law to be both a religious duty and a necessity for the functioning
of society. Reflecting this fact, God says: “We have sent Messengers with
clear proofs, and sent down with them the Scripture and the balance that
mankind can establish justice”. 65
Upholding justice is considered in Islam as a divine mission compen-
sated by God. In this context, the Prophet (‫ )ﷺ‬said: “A day of just leader-
ship is better than sixty years of worship”. 66 261F
63
Rulers of the Muslim nation who were appointed after the Prophet Muhammad and subse-
quently in medieval Islám.
64
Alī Al-Salaby, 2004, p. 369, see above note 27.
65
Qur’án surat Al-Hadid, 57:25.
66
Al-Shahīd Al-Sadr, 1977, vol. 1, p. 127, see above note 26.

To assert the divine mission of al-qāḍī, the Prophet (‫ )ﷺ‬said: “When

al-qāḍī sits two angles descend to guide, direct and support him, as long as
he is not unjust. If he delivers injustice, they will abandon him and as-
cend”. 6726F
If al-qāḍī performs his function correctly and fairly, he will receive

the divine blessings. This approach was emphasised by the companion of
the Prophet Muḥammad (‫)ﷺ‬, Ibn Masud, who once said: “To spend one-
day judging between people is more pleasing to me than engaging in wor-
ship for seventy years”. 68 263F
Islamic fiqh views the act of judging between people as an esteemed

religious function that is to be considered a supreme act of worship. Con-
sequently, Islamic fiqh allocates high status to judges. 69 The names of many
just and qualified judges have been preserved in Islamic history and the
concepts of fairness and integrity were attached to their names. Many pag-
es in history books are devoted to the lives and careers of early eminent
Muslim judges like Mu’adh Ibn Jabal in Yemen, Iyâs Ibn Muawiyah in
Basra, Shuraih Ibn al-Hârith in Kufah, Abú Moussa Al-Ash'ari in Kufa,
Yaqub Ibn Ibrahim al-Ansari better known as Abú Yusuf (the student of
the great jurist Abú Ḥanífa) in Baghdad, and others who applied the teach-
ings of Islam in their judgements in the best possible manner and gave us
living examples of morality and integrity.
3.8.3. The Gravity of the Function of Al-Qāḍī in Sharí‘ah
Taking up the position of qāḍī has grave consequences. The Prophet
Muḥammad (‫ )ﷺ‬warned of the gravity of this position. In one of his ḥadíth,
he is reported to have said:
Out of three Judges, two are destined to Hell and one is des-
tined to heaven: A man who, knowingly, judges by other than
truth is destined to Hell; a man who, unknowingly judges is
destined to Hell; and a man who recognises the truth and
judges accordingly, is destined to Heaven. 70
67
Imam Al-Baihaqi, “Al-Sunan Al-Kobrá”, Abdallh Al-Turkey (ed.), first edition, Hagar Cen-
tre for Research, Arabic and Islámic Studies, Cairo, 2011, vol. 20, p. 245.
68
Imam Ibn Qudāmah, Al-Mug̲h̲nī yalih al-sharh al-kabeer, Dar al-Kitab al-Araby, Cairo, vol.
11, p. 374.
69
Ibn AbīʾAl-Dam, 1984, p. 6, see above note 32.
70
Al-Tirmidhi, ḥadíth no. 1322, p. 321, see above note 1.

In another ḥadíth, asserting the sacredness of the responsibility of

judges in Sharí‘ah, the Prophet (‫ )ﷺ‬said: “There are seven categories of
people whom God will shelter under His shade on the Day when there will
be no shade except His. (One is) the just leader”. 71 26F
Further, it was narrated that the Messenger of God (‫ )ﷺ‬said: “God is

with the judge so long as he is not unjust, but if he rules unjustly, He en-
trusts him to himself”. 72 267F
These religious texts illustrate a burdensome responsibility that Sha-

rí‘ah laid down on the part of the judges. In this case, the judge is rewarded
for his ijtihád and efforts, not for his mistakes. This illustrates that Islam
stresses and places a responsibility on a judge to the extent to which he ex-
erts efforts in his judgments.
According to Sharí‘ah, a judge should strive to establish justice,
based on primary rules set in the Qur’án and Sunnah. Otherwise, he has to
practice ijtihád to establish the applicable rules. Reportedly, the permissi-
bility of deducing secondary rulings through critical thinking had been en-
couraged by the Prophet (‫ )ﷺ‬himself in the form of ijtihád. 73 Ijtihád is of-
ten dubbed as independent or critical reasoning, and is considered a fun-
damental requirement for acquiring the position of al-qāḍī, according to
early Muslim jurists. 74 However, one who is qualified for ijtihád, should
possess certain qualifications: piety (taqwa), knowledge of the objectives
(maqáṣid) of Sharí‘ah, knowledge of the Qur’án and the Sunnah, and skill
in the Arabic language. 75
Surprisingly, many early Muslim jurists actively avoided being ap-
pointed as judges, even though they are qualified for this position. In his
treatise Guide for the Rulers on the Rules of Litigations, renowned classical
jurists Sheikh ‘Ala Al-Deen Al-Taraabulsi explained the dilemma, which
early-Muslims jurists and Imams faced when they were requested to act as
judges. He clarified that a number of exemplary Imams endured hardship
71
Sahih Muslim, Darussalam, 2007, vol. 7, ḥadíth no. 1031, p. 76.
72
Ibn Majah, Sunan Ibn Majah, Centre of Research and Information Technology, Dar al-
Taseel, 2014, first edition, vol. 2, no. 2312, p. 455.
73
Ibn Qudāmah, Al-Mug̲h̲nī, vol. 10 p. 35, see above note 51.
74
Onder Bakircioglu, “The Principal Sources of Islamic Law”, in Tallyn Gray (ed.), Islam and
International Criminal Law and Justice, Torkel Opsahl Academic EPublisher, Brussels,
2018 (https://www.legal-tools.org/doc/0528c5/).
75
Imam Abú Isaaq Al-Shatby, Al-Muwafaqat, Dar Ibn Afan for Publication and Disruption,
KSA, 1997, vol. 3, p. 213.

in order to avoid assuming this position and they bore it with patience.
Some of them even accepted being beaten and imprisoned instead of being
appointed, and others fled from their homelands in order to avoid being
appointed as judges. He explained that “[t]hey feared the serious responsi-
bility of judging between people, in the assumption that they did not fulfil
the required conditions”. 76 Some others feared the grave danger of passing
incorrect judgements, as indicated in many of the ḥadíth of the Prophet (‫)ﷺ‬,
in which a stern warning is issued to the one who is appointed as a judge
and does not fulfil the obligations and requirements needed to be a judge.
The gravity of the responsibility of al-qāḍī is illustrated in a famous
ḥadíth by the Prophet Muḥammad (‫)ﷺ‬, in which he mentioned how God
would hold al-qāḍī accountable for all his deeds. He said: “Al-qāḍī, though
the just one, will be brought (before God) in the day of Resurrection, due to
the severe accountability he will face, he would have wished that he did not
decide between two (even in half a date)”. 77 27F
In his commentary on Adab Al-Qāḍī, Al-Shahīd Al-Sadr interprets

the meaning of this ḥadíth by stating that: “Islamic jurists warn of the grav-
ity of judgeship even for a just qāḍī, accordingly, unjust qāḍī will be faced
by severe measures of accountability”. Al-Shahīd al-Sadr stresses that all
judges will be held accountable in the day of judgement, but a just qāḍī
will be spared by God. 78
Additionally, in his book, Al-Mug̲h̲nī, Imam Ibn Qudāmah points out:
“In acting as a judge there is a grave danger and a huge burden for the one
who does not undertake this function properly. Hence the salaf (prominent
predecessors) would refuse it emphatically, fearing its dangers”. 79
Nonetheless, the Prophet (‫ )ﷺ‬encouraged his companions to accept
the position of al-qāḍī. Conveying the Sunnah of the Prophet (‫ )ﷺ‬Alī Ibn
Abī Ṭālib once said:
The Messenger of God (‫ )ﷺ‬sent me to Yemen. I said: O Mes-
senger of God, you are sending me to judge between them
while I am a young man, and I do not know how to judge? He
patted me on the chest with his hand and said: ‘O God, guide
76
Sheikh ‘Ala Al-Deen Al-Taraabulsi, Mu’een al-Hukkaam fima yataraddadu bayna al-
Khasmayni min al-Ahkaam, p. 9.
77
Al-Baihaqi, 2011, p. 275, see above note 67.
78
Al-Shahīd al-Sadr, 1977, vol. 1, p. 127, see above note 26.
79
Ibn Qudāmah, Al-Mug̲h̲nī, vol. 10, p. 33, see above note 51.

his heart and make his tongue steadfast. When two litigants sit
in front of you, do not decide until you hear what the other has
to say as you heard what the first had to say; for it is best that
you should have a clear idea of the best decision. Alī said: I
had never doubted about a decision that I made between two
(people) ever after. 80
The foregoing reflects the meaning of the Prophet’s ḥadíth that was
situated at the beginning of this chapter: “He who is appointed as a judge is
slaughtered without a knife”. In his treatise on Adab Al-Qāḍī, Imam Ibn
AbīʾAl-Dam recounted two meanings reported by an early-Muslim jurist.
He who has appointed as qāḍī is like a man who is slaughtered because (1)
he has to suppress his desires, defeat his inclinations and prevent himself
from social life; and (2) he is exposed to great danger, as he cannot fulfil
the necessities of this job. 81
Imam Ibn AbīʾAl-Dam goes further in explaining that the word
‘slaughter’ should be understood metaphorically to mean that al-qāḍī
should exert his utmost efforts to ensure that he justly adjudicate cases
brought before him according to the highest standards of Sharí‘ah. 82
As explained by Imam Al-Syuti, this ḥadíth of the Prophet (‫ )ﷺ‬warns
of the gravity of al-qāḍī’s duties, and the word slaughter is used as a meta-
phor which refers to the grave consequences that a judge could suffer if he
erred in his judgement. 83 278F
3.9. Qualifications of Judges in Sharí‘ah

The Al-qāḍī is comparable to a magistrate or a judge in contemporary
Western judicial systems. He holds a distinct position with great respect in
the Muslim nation. Given his prestigious social status, and his knowledge
of the Sharí‘ah jurisprudence, the al-qāḍī is perceived as the key institution
for the application and preservation of Islamic law. Because the al-qāḍī
performed an essential function in early Muslim society, requirements for
80
Al-Baihaqi, Ahmed Ibn El-Hussein, Al-sunan we al-athar (The Sunah and Traces), Sayed
Kasrawy Hassan (ed.), Dar Al-Kotob Al-Ilmiyah, Beirut, first edition, 1991, vol. 7, Book of
Adab Al-Qadi, ḥadíth no. 5874, p. 368; Sunan Abī Dāwūd, Abī Trab Adel Ibn Muhammad
and Abi Amr Ibn Abbas (eds.), Dar al-Taseel, first edition, 2015, vol. 5, no. 3537, pp. 578–
588; Alī Al-Salaby, 2004, p. 153, see above note 27.
81
82
Ibid., pp. 260–261.
83
Al-Syuti al-Raihabany, 1961 p. 454, see above note 60; See also Ibn Qudāmah, Al-Mug̲h̲nī
yalih al-sharh al-kabeer, vol. 11, p. 374, see above note 68.

the post were strict. A person selected to act as al-qāḍī should be suitably
qualified to fulfil such a position and fulfil the prerequisite qualifications
required by Sharí‘ah law.
3.9.1. Prerequisite Qualifications of the Al-Qāḍī
Sharí‘ah rules on the judicial function are stringent when it comes to the
qualifications that a qāḍī should possess. In order to be appointed as qāḍī,
early-classical Muslim jurists identified basic requirements that a person
should enjoy: he must be a free Muslim of legal capacity, be of sound mind,
with full sensory perception, and possess high moral probity or rectitude.
This means that al-qāḍī should be one of upright character, of a mature and
balanced personality, with no ulterior motives, physically and psychologi-
cally healthy, of sound hearing and sight, and is able to communicate ver-
bally in the language used in court.
Besides the above-mentioned requirements, the majority of Muslim
jurists agree that it is a prerequisite in Sharí‘ah that any individual seeking
to act as a qāḍī should possesses sound knowledge of Qur’án, Sunnah and
fiqh, as his work must be totally congruent with Islamic law. Therefore, he
should have the capacity to exercise ijtihád. This requires that the al-qāḍī
must be sufficiently educated and knowledgeable about the law that he ap-
plies, and able to perform ijtihád to extract legal rulings from original
sources. 84
This approach was illustrated in the tradition of the Prophet Mu-
hammad (‫ )ﷺ‬narrated by his companions. It was narrated by Mu’adh Ibn
Jabal when the Prophet appointed him as al-qāḍī in Yemen. Some compan-
ions of Mu’adh Ibn Jabal said: “When the Messenger of God (‫ )ﷺ‬intended
to send Mu’adh Ibn Jabal to Yemen”, he asked: “What will you do if a mat-
ter is referred to you for judgement?”. Mu’adh said: “I will judge according
to the Book of God”. The Prophet asked: “What if you find no solution in
the Book of God?”. Mu’adh said: “Then I will judge by the Sunnah of the
Prophet”. The Prophet asked: “And what if you do not find it in the Sunnah
of the Prophet?”. Mu’adh said: “Then I will delicately exert ijtihád to reach
a resolution”. The Prophet patted Mu’adh’s chest and said: “Praise be to
84
Ibn AbīʾAl-Dam, 1984, pp. 134–135, see above note 32.

God who has guided the messenger of His Prophet to that which pleases
His Prophet”. 85
Asserting the responsibilities of al-qāḍī attached to this religious duty,
in his message to Abú Moussa Al-Ash'ari, Caliph Umar Ibn Al-Khaṭṭáb in-
structed him as follows:
If a case is brought before you and you cannot find applicable
rule(s) neither in the Qu’ran nor in the Sunnah, then you must
resort to logical reasoning, and use analogy, comparison and
parallelism (to reach a judgement). Consequently, apply the
ruling that you consider closest to what is right and fair and
that would please God Almighty.
Numerous early-classical literature is written on ijtihád as a prerequi-
site to occupy the judicial office. According to a contemporary Muslim
scholar, as stated in his article on “The Requirement of Ijtihád to Occupy
the Judicial Office”: “The majority of early Muslim jurists regard ijtihád as
inevitable quality”. 86 Thus, according to Sharí‘ah provisions, judges are
chosen from among people who already have a consolidated experience in
the interpretation and application of Sharí‘ah. However, Muslim jurists be-
longing to modern jurisprudential schools argue that in the modern eras, it
is difficult to find judges who have the skills to exercise ijtihád, as recog-
nised in Sharí‘ah. 87 Thus, in many Arab countries nowadays, the require-
ment of ijtihád is no longer a prerequisite for the appointment in the judici-
ary, it suffices that the judge has commendable legal knowledge, and judi-
cial skills necessary for the proper performance of his judicial duties.
Further, to assume the judicial function, al-qāḍī should possess the
highest standards of integrity. Ibn Qayyim al-Jawziyyah 88 asserted that the
person appointed for this task should be the best of the nominees. He
should also be religious and pious. 89 Alī Ibn Abī Ṭālib said: “A person
85
Sunan Abī Dāwūd, vol. 5, no. 3547, pp. 584–585, see above note 80; Al-Shaid al-Sadr, Al-
Khaṣṣāf, 1977, vol. 1, p. 127; Al-Mawardi, 1989, p. 90, see above note 24.
86
Abd Al-Aziz Al-Meshal, Shart al-ijtihád fiman yaly al-qada, Megalat Al-Adel (Justice
Journal), 2009, vol. 43, p. 127.
87
Al-Shahīd Al-Sadr, 1977, vol. 1, p. 206, see above note 26.
88
Ibn Qayyim al-Jawziyyah (691/1292-751/1350) was born in a village near Damascus, Syria.
His contributions to Islámic writings are extensive, dealing most with Qur’ánic commen-
taries and prophetic traditions. He was a student of Ibn Taymiyyah, but did not restrict him-
self to the Hanbali madhab and sometimes took view from other madhabs or no madhab.
89
Ibn Qayyim al-Jawziyyah, I’lam al-Muwaqqi’in a̒ n Rabb al ̒Alamin, Narrated by Abd El-
Rahman El-Wakeel, vol. I, Dar Ehya al Turath al Araby, Beirut, p. 114.

could not be appointed as a judge unless he has five characteristics: virtu-

ousness, modesty, knowledge of precedents, be willing to deliberate with
prudent scholars, and does not fear but only God and no one else”. 90
The strongest proof that judges are carefully selected in the Islamic
tradition is stipulated in Caliph Alī Ibn Abī Ṭālib’s Message to his commis-
sioner in Egypt, Malik al-Ashtar, in which he entrusted him with selecting
judges according to the highest integrity standards. I will address those in-
tegrity standards stipulated in this message later.
Other jurists required more qualities to guarantee that the person
holding the position of al-qāḍī possess required conditions, such as being
authoritative, having extensive knowledge, and being trustworthy. Such
qualities also include uprightness, truthfulness, fidelity, probity and free-
dom from corrupting influences.
Addressing the same issue, Caliph Umar Ibn Abd Al-Aziz is reported
to have said: “Al-qāḍī should possess seven qualities: Sanity, jurisprudence,
pious, integrity, firmness, knowledge of precedents, and wisdom”. He add-
ed: “if he misses one of these qualities, then he is unqualified”. 91
Imam Ibn Qudāmah has summarised the required qualities of judge-
ship in the following three conditions:
1. Integrity: As a basic condition that guarantees that a judge is selected
according to Sharí‘ah rules and is complete in his personal qualities;
2. Uprightness: Uprightness has been reflected by an early Muslim au-
thority in three virtues: truthfulness, evade heresy, and avoid major
sins. 92 Hence, a sinner or corrupt person cannot be selected as a
judge;
3. Ijtihád: Al-qāḍī should be capable of conducting individual inde-
pendent legal reasoning based on Sharí‘ah disciplines. 93
The foregoing demonstrates that the application of Sharí‘ah requires
righteous, reliable, and learned judges who enjoy both personal and profes-
sional judicial integrity.
90
91
Ibid.; Ibn Qudāmah, vol. 11, p. 386, see above note 68.
92
Muhammad Taher, al-garh we al-taeddl, al-Dar al-Arabia Llketab, 1997, p. 249.
93
Ibn Qudāmah, vol. 22, pp. 380–384, see above note 68.

3.10. Meaning of Integrity in the Arabic Language

The term ‘integrity’ in Arabic is close to the meaning of the Latin adjective
‘integer’, which refers to the state of being whole or complete and would
also reflect the term ‘coherent’, as explained in Chapters 1 and 2 above.
Similar to what has been stipulated in an important international document,
the term in Arabic also reflects the attribute of honesty, rectitude and right-
eousness; 94 in other words, a ‘principled behaviour’ or a ‘clear intrinsic
moral value’. For ordinary Arab citizens, the first meaning that will come
to mind when hearing the term ‘integrity’ in the abstract, is morals or vir-
tues, and sometimes the terms are used interchangeably. In general, it is
understood as a high moral character that distinguishes a person, and as a
central value impeded in his conduct such as honesty, purity and fairness.
Those who have such a characteristic should be considered as ‘virtuous
persons’.
In classical Arabic dictionaries, the classical source of the word
means ‘distance’, or keeping distant from something, especially dirt. The
term is pronounced in Arabic as ‘nazamā’, which literally means ‘to dis-
tance oneself from malice and avoid suspicions’. Thus, the term is also at-
tached to a person’s conduct and manners. 95 From a legal perspective, the
term means ‘to distance oneself from corruption in all its forms’. And in a
judicial context, the term is considered as a core quality of a judge. It refers
to purity of intention, and may also cover the value of incorruptibility,
while carrying out a judicial function.
In Arabic culture, a person with ‘integrity’ should have a high degree
of conscientiousness. This special characteristic controls a person’s attitude
in both the personal and professional life and encourages a judge to per-
form his duties thoroughly and diligently. In the Arab tradition, a judge
with ‘integrity’ should possess the following characteristics: conscientious-
ness, uprightness and fairness. This illustrates that ‘integrity’ is a set of val-
ues that reflect the core characteristic of a judge.
3.11. Meaning of Judicial Integrity in Sharí‘ah
As stated above, judges in the Islamic tradition occupy a supreme status
and are regarded as implementing a divine function on Earth. Accordingly,
those who are selected to serve as judges should possess the highest stand-
94
UNODC, 2011, p. 79, see above note 2.
95
Al-Waseet Dictionary, p. 952, see above note 35.

ards of integrity. Integrity in this regard should be considered as an ethical

quality of those who occupy the judicial office.
As we will see, in Sharí‘ah sources, integrity and morality are inter-
related. ‘Morality’ in Islam is a comprehensive term that serves to include
the concept of righteousness, uprightness and good character. In addition, it
is the body of moral qualities and virtues prescribed in the Qur’án and the
Sunnah, which often speak in emphatic manners to instruct Muslims to
adopt morally good characteristics.
Obviously, the term integrity, as such, in a judicial context, is not
frequently used in the primary sources of Sharí‘ah (Qur’án and Sunnah).
Instead, other terms such as fairness, righteousness and impartiality or im-
partial justice are used to reflect it, especially during trial proceedings,
while other terms like virtuousness, uprightness and piety are used to de-
scribe a judge’s integral qualities. These abstract characteristics are re-
quired to be realised in the form of a concrete principle, the attitudes of a
judge, either in the workplace or in private life. Notwithstanding these facts,
the term is used explicitly in some major early jurisprudential treatises and
exegeses like Al-Mug̲h̲nī and Adab Al-Qāḍī. Obviously, it is frequently
used in scholarly and judicial works that tackle Sharí‘ah in our modern era
as a key judicial value.
In fact, upon reading the provisions of Sharí‘ah that exclusively ad-
dress the qualities required to occupy judicial office, it is easily inferred
that integrity is a core judicial value that encompasses other well-
established virtues in Islam. Those occupying a judicial office are required
to maintain the highest standards of decorum and decency in his frequent
dealings with other people, and behave beyond reproach.
Subsequently, this central characteristic encompasses other values
essential to exercise the sacred judicial function. In my view, integrity rep-
resents a moral value that encompasses a long list of factors that are con-
tinuously adapted in a fast-changing world. According to the message of
Caliph Umar Ibn Al-Khaṭṭáb, conscientiousness, patience, dedication,
righteousness, fairness and dignity are all components of a judge’s integrity.
Each of these characteristics is not equivalent to the concept of integrity,
but they all come under it.
Conclusively, after looking at the rulings of Sharí‘ah, integrity
should be considered as the bond that unites many judicial qualities togeth-

er and acts as an umbrella for many other virtues required to hold a judicial
position.
It seems that occasional contemporary scholars and practitioners
started to support the same approach of Sharí‘ah towards judicial integrity
as a ‘virtue’ and a ‘moral’ character required for appointment in a judicial
position. For example, Andrzej Rzeplinski, the President of the Constitu-
tional Tribunal of Poland, admits that a judge without morals or integrity is
no judge at all. He stated that:
The profession of being a judge is not a good career for per-
sons who do not possess a sufficiently well-established sense
of personal and professional dignity, the virtue of personal in-
tegrity, impeccable past, professional and practical knowledge,
social and family maturity, and personal maturity to be able to
assume full responsibility for each ruling passed in accordance
with the law and with their own conscience. 96
3.12. Why Judicial Integrity Is Significant in Sharí‘ah

So far, the study of Sharí‘ah signifies that judicial integrity is a virtue re-
quired to carry out the judicial function. In this sense, we cannot separate a
judge’s character from his actions. Only a judge with integrity is a good
judge, while a judge without integrity is a bad judge. This moral approach
is embedded in the normative underpinnings of the concept of judicial in-
tegrity in Islam. This is why Sharí‘ah concentrates on the moral character
of the judge reflected in his integrity.
It is asserted that the faith and confidence of the common people in
the judiciary will be maintained only if the highest possible standards are
adhered to by judges. 97 There is no doubt that judicial integrity fortifies the
faith of the public in judges and judicial institutions. It is, therefore, imper-
ative that judges must endeavour to realise the utmost standards of integrity
both in their professional and personal lives. 98 As we will see, this essential
quality was explicitly mentioned in the Sharí‘ah’s fiqh.
96
UNODC, Judicial Conduct and Ethics, Self-Directed Course, Vienna, 2019, p. vii.
97
R.N. Prasad and P. Chakraborty, Administration of Justice and the Judicial Administration in
Mizoram, Mittal Publications, New Delhi, 2006, p. 4.
98
Md. Manjur Hossain Patoari et al., “The Desired Qualities of a Good Judge”, in Academic
Journal of Interdisciplinary Studies, MCSER Publishing, Rome-Italy, vol. 3, no. 1, March
2014, p. 97.

3.13. Reflections in Sharí‘ah Sources on Judicial Integrity

According to international standards, a judge shall exhibit and promote
high standards of judicial conduct in order to reinforce public confidence in
the judiciary which is fundamental to the maintenance of judicial inde-
pendence. 99 Accordingly, as a reflection of the concept of ‘high standards
of judicial conduct’, integrity is vital to the independence of the judiciary.
Judges should, therefore, demonstrate and promote a high standard of judi-
cial integrity as one element of assuring the independence of the judiciary.
They should also ensure that their conduct is above reproach in the view of
a reasonable observer. 100 In other words, their behaviour must reaffirm the
people’s faith in the integrity of the judiciary, 101 as justice must not merely
be done but must also be seen to be done. 102
While the basics of judicial integrity have been agreed and enumer-
ated, inter alia, in the Bangalore Principles of Judicial Conduct, the guide-
lines on some topical matters may not be up to the required standards and
might need more research. In addition, some required criteria have not been
addressed in those principles. For example, subjects like the personal quali-
ties of the judge in his daily life, and the standards governing the relation-
ships between the prosecutor and his subordinates and the judges and their
governments, have recently become more relevant to judicial work and are
in need of closer scrutiny.
The importance of judicial integrity rests on the fact that judges are a
pillar of the justice system they serve and the public expects the highest
and irreproachable conduct from anyone performing a judicial function. In
the following, I will delve into Sharí‘ah’s sources to see how they address
the concept of judicial integrity.
Reflections in Sharí‘ah on the concept of judicial integrity can be
traced in several verses of the Qur’án, where God demands from the be-
lievers in general and His messengers in particular, to deliver justice firmly
in accordance to the highest standards of integrity.
99
Bangalore Principles of Judicial Conduct, Article 1.6, see above note 6.
100
Ibid., Value 3.1.
101
Ibid., Value 3.2.
102
Ibid., Value 3.2.

In surat Al-Nisaa’, God commands His believers to stand up for jus-

tice and fairness and be cautious of deviating from it. He said: “O you who
believe! Stand out firmly for justice”. 103
The same applies to the Prophet of God, Muḥammad (‫)ﷺ‬. God ad-
vised him to deliver judgements according to the rules stipulated in the
Qur’án with justice and to avoid people’s interferences and whims: “So
judge (O Muḥammad) between them by what God has revealed and do not
follow their vain desires, but beware of them lest they turn you away from
some of what God has sent down to you”. 104 29F
Those who had the opportunity to read the most renowned literature
on Adab Al-Qāḍī, would recognise that Sharí‘ah requires extra judicial
qualities that the al-qāḍī should possess. In his treatise on Adab Al-Qāḍī,
Ibn AbīʾAl-Dam addressed the qualities that the al-qāḍī should possess,
and the environment that should surround him in court, classifying them
under the title Adab Al-Qāḍī. He divided such qualities and conditions into
three categories: the first category includes forms of conduct attached to
the personality of the al-qāḍī (personal qualities); the second category co-
vers traditions and formalities that surround the judicial function, mostly
attached to the judicial institution itself (judicial institutional formalities);
and the third category covers specific professional qualities required for the
proper execution of al-qāḍī judicial duties (professional qualities). 105
As I have already mentioned, judicial integrity is a holistic term that
encompasses various qualities that al-qāḍī should possess. Those qualities
reflect intrinsic values that are manifested in the al-qāḍī’s personal charac-
teristics, such as ‘piousness’, ‘conscientiousness’, ‘righteousness’, ‘up-
rightness’, ‘propriety’, ‘dignity’, ‘esteem’, ‘firmness’, ‘patience’ and ‘cour-
tesy’. Some of these qualities are purely personal qualities that every Mus-
lim should practice, while some other qualities are attached to the conduct
of judges. Other qualities are associated to the al-qāḍī’s professional con-
duct during the performance of his judicial duties, such as ‘independence’,
‘impartiality’, ‘equality’, and ‘competence and diligence’, as affirmed in
the Bangalore Principles of Judicial Conduct.
Bearing in mind the purpose of this chapter, and for the sake of sim-
plicity, I will examine how Sharí‘ah sources address judicial integrity ac-
103
Qur’án, surat An-Nisaa’, 4:135.
104
Qur’án, surat Al-Ma’ida, 5:49.
105
Ibn AbīʾAl-Dam, 1984, vol. 1, p. 136, see above note 32.

cording to the above-mentioned distinction between personal and profes-

sional judicial integrity, while leaving the topic of judicial institutional in-
tegrity out of the analysis here.
3.14. Personal Judicial Integrity of the Al-Qāḍī in Sharí‘ah
According to applicable international standards, judges are expected to be-
have with honesty and propriety both on the bench and in their private lives
so as to inspire trust and confidence in the community. 106 Notably, Sha-
rí‘ah’s approach to the qualities of al-qāḍī is different from that of contem-
porary judicial systems, in particular with respect to good manners reflect-
ed in modern systems in the term ‘propriety’. Ethics and good manners are
deemed to be inherent characteristics of every Muslim within his commu-
nity and in his relation to God, as exemplified in the Prophet’s manners.
According to the Sharí‘ah provisions, one can infer that an intrinsic
quality of the concept of personal integrity of the al-qāḍī is presented in his
conscientiousness. In that sense, the al-qāḍī’s personal integrity means that
he enjoys a conscious and consistent system of values, based on his faith,
which guides him in his demeanour and actions.
Imam Ibn AbīʾAl-Dam addressed certain central personal qualities
that the al-qāḍī should possess and the conduct that he should follow, both
in his daily life and in court. The al-qāḍī should be God-fearing and at the
same time have a dignified demeanour distinguished by sobriety and piety.
Further, he should bear an absolutely irreproachable character. For example,
according to Adab Al-Qāḍī literature, the al-qāḍī should be acquainted with
piety, and distance himself from morally questionable companions. 107 To
preserve his integrity, he should avoid requesting favours or borrowing
from people, except close relatives. 108
In Sharí‘ah literature, there is always a reference to righteousness as
an inherent quality of the al-qāḍī. For the purposes of this chapter, ‘right-
eousness’ is used to mean the individual quality of being morally right or
justifiable. This is a key notion for the common sense of the concept of ‘in-
tegrity’. Regrettably, the negative term ‘self-righteousness’ has become so
106
UNODC, Resource Guide on Strengthening Judicial Integrity and Capacity, Vienna, 2011,
p. 127.
107
Imam Ibn Farhoun, Tabsrat Al-Hukam fe Osool Al-Akdiah we Manaheg Al-Ahkam (Insight
the Rulers of Fundamentals of Cases and Methodology of Judgements), Gamal Marashly
(ed.), Dar Alam Al-Kotob, Riyadh, 2003, vol. 1, p. 28.
108
Ibid., p. 28.

commonplace – often as an appropriate reaction to hypocrisy or moralis-

ing – that utility of the compass virtue of ‘righteousness’ may have become
undermined. According to this quality, Sharí‘ah requires that the al-qāḍī
should strive to find the truth and uphold justice, especially in Qisás crimes
as it is based on the principle ‘no blood goes in vain in Islam’.
In the ninth paragraph of his message, Caliph Umar Ibn Al-Khaṭṭáb
instructed Abú Moussa Al-Ashari, as follows:
Judging fairly is rewarded by God Almighty and praised by
people. He whose heart’s intention is to establish justice and
rule fairly, even if his rulings would be against his own inter-
est, will be protected and supported by God Almighty, where-
as he who, out of hypocrisy, acts contrary to his heart’s con-
viction, will be disgraced by Him. God accepts only pure and
honest deeds and intentions.
According to applicable international standards, judges are expected
to treat the litigants, witnesses and attorneys with courtesy and respect, 109
as disrespectful behaviour towards a litigant infringes on the litigant’s right
to be heard, and compromises the dignity and decorum of the courtroom.
Lack of courtesy also affects a litigant’s satisfaction with the handling of
the case, thus creating a negative impression of courts in general.
Sharí‘ah had contemplated those qualities centuries ago. The al-qāḍī
must not show any sense of disrespect towards the litigants. For example,
he should not laugh at litigants, nor should he make fun of them; according
to established rules of Islam, as stated in the Qur’án: “O you who have be-
lieved, let not a people ridicule another people; perhaps they may be better
than them”. 110 According to Imam Ibn AbīʾAl-Dam, the al-qāḍī should re-
ceive the witnesses well and treat them with courtesy and respect. 111 It is
narrated that Caliph Alī Ibn Abī Ṭālib has removed the al-qāḍī Aba Al-
Asoud Al-Dialy one hour after he appointed him. Then, Aba Al-Asoud
asked Caliph Alī Ibn Abī Ṭālib: “Why did you remove me from office?”.
Caliph Alī responded: “Because it was reported to me that you raised your
voice over the voice of the litigants”. 112
109
UNODC, 2011, p. 127, see above note 106.
110
Qur’án, surat Al-Hujurat, 49:11.
111
Ibn AbīʾAl-Dam, 1984, vol. 1, pp. 367–370, see above note 32.
112
Imam Ibn Al-Kāss, Adab Al-Qāḍī, Hussein Khalaf Al-Jobory (ed.), Maktabat Al-Sedeek,
KSA, 1989, vol. 1, p. 99.

In general, the al-qāḍī should adopt respectful behaviour towards

everyone who stands before him. He may return the greetings of the liti-
gants and witnesses when they enter the courtroom. However, he should
greet all parties equally, and it is also recommended not to greet them after
beginning the judicial proceedings to avoid creating any doubt of his atti-
tude towards the parties. 113
In his famous treatise on Adab Al-Qāḍī, Imam Ibn AbīʾAl-Dam indi-
cated some qualities that the al-qāḍī should observe during the perfor-
mance of his judicial duties. The al-qāḍī should observe the highest stand-
ards of propriety during court proceedings, and ensure that his conduct is
above reproach. 114 In this context, he retrieved the essence of the Message
by Caliph Umar Ibn Al-Khaṭṭáb on the Judiciary.
The al-qāḍī should not accept gifts or social hospitability from liti-
gants or people of interests, 115 unless from his relative who could not ap-
pear as litigants before him. 116 According to Imam Al-Khaṣṣāf, the al-qāḍī
may continue to accept gifts from those who used to send him gifts before
he is appointed as qāḍī. 117
In general, gifts are praised in Sharí‘ah. However, great precautions
are taken when it comes to al-qāḍī. 118 Acceptance of gifts or benefits from
the public is prohibited by Islam as it raises doubts about the al-qāḍī’s in-
tegrity, 119 and may pave the way for corruption. 120 Moreover, he should
avoid private communications with any of the parties to the legal dispute
presented before him, and should never see any party in private, nor should
he ask any party to do him any favours. He also should not engage in trade
or private business, or other activities that may compromise his position or
113
Al-Shahīd al-Sadr, 1977, vol. 2, p. 66–69, see above note 26.
114
115
116
Ibn Farhoun, 2003, vol. 1, p. 26, see above note 107.
117
118
Ibid., p. 34–37.
119
Ibn Farhoun, 2003, vol. 1, p. 100, see above note 107; see also Al-Shahīd Al-Sadr, 1977, vol.
1, pp. 353–354, see above note 26.
120

cast doubts upon his demeanour and open the door for bribes or show fa-
vouritism to any party to a dispute before him. 121
The prohibition of accepting gifts and other privileges offered to al-
qāḍī is affirmed in various classical Islamic sources, as it raises suspen-
sions and subjects him to covet”. 122 Moreover, this type of conduct may
open the doors for the public to question his integrity and may consider
such gifts as bribes or favours. 123 In his treatise on Adab Al-Qāḍī, Imam Al-
Khaṣṣāf classifies such acts as pure bribes. 124 In all cases, the al-qāḍī
should never accept money from litigants to adjudicate between them, as
this is considered in Islam as a form of bribe. 125 It goes without saying that
he must not accept bribes in any forms. In this context, it is reported that
the Prophet Muḥammad (‫ )ﷺ‬said: “May the curse of God be upon the one
who pays a bribe and the one who takes it”. 126 Bribery is a major sin in
321F
Sharí‘ah, and falls under fisq (a term that will be explained later).
However, there is a consensus among Sharí‘ah jurists that the al-qāḍī
may accept gifts from his relatives, except for those having cases pending
before him. As stated above, he may also continue to accept gifts from
those who gave him gifts before his appointment as qāḍī, but if they in-
crease the value of the gift after his appointment, then he should cease ac-
cepting such gifts. As such, the al-qāḍī should never compromise his value
for any reason. Thus, he must not appear to use his judicial position to per-
sonal advantage, nor must he act in a manner that raises suspicions about
his conduct.
On the basis of the foregoing, it is clear that, in Islam, the personality
of the al-qāḍī and his uprightness are traditionally viewed as being subor-
dinate to his judicial function. Bearing in mind the social discrepancies in
the early Islamic era, and for the proper administration of justice as exists
in our modern era, I can infer from Sharí‘ah sources that the following per-
sonal integrity values are required in order to assume a judicial position as
121
Ahmed Sharkawy, Haibat al-qāḍī fe al-fiqh al-Islámy wa al-kanoon al-wadey (Judge's Pres-
tige in Islámic Jurisprudence and Positive Law), al-Wafaa Library, first edition, 2018,
pp. 70–72.
122
123
124
125
Ibid., p. 100.
126
Ibn Majah, 2014, vol. 2, no. 2316, p. 456, see above note 72.

alluded to above: ‘conscientiousness’, ‘uprightness’, ‘propriety’, ‘patience’,

‘dignity’, ‘esteem’, ‘firmness’ and ‘courtesy’.
3.15. Professional Judicial Integrity of Al-Qāḍī in Sharí‘ah
We have seen that the qualities attached to the personality of the al-qāḍī
have a great impact on the public respect for and confidence in him. Other
professional qualities that have an impact on the performance of the al-qāḍī
during the court proceedings are also of great importance. In Sharí‘ah, in-
tegrity is not only a quality of the judge related to his judicial office, it ex-
tends to encompass his behaviour during the trial. We will note that person-
al and professional integrity requirements overlap and complement each
other during the judicial process.
According to Sharí‘ah, the al-qāḍī should observe the highest stand-
ards of professional integrity during the trial, as we have seen above. In his
Message to the Judiciary, Ibn Khaldun identified certain commands that the
al-qāḍī should observe and follow before adjudication. Some of those
commands address the al-qāḍī’s divine duties, while others concern the al-
qāḍī’s attitude when he is on the bench and assumes the judicial process.
The first command requires the al-qāḍī to resort to God asking His support
and insight. He commanded the al-qāḍī to recite certain verses of the
Qur’án, in particular verse 255 of surat al-Baqarah, which reads:
God! There is no deity save Him, the Alive, the Eternal. Nei-
ther slumber nor sleep overtaketh Him. Unto Him belongeth
whatsoever is in the heavens and whatsoever is in the earth.
Who is he that intercedeth with Him save by His leave? He
knoweth that which is in front of them and that which is be-
hind them, while they encompass nothing of His knowledge
save what He will. His throne includeth the heavens and the
earth, and He is never weary of preserving them. He is the
Sublime, the Tremendous.
After this, according to Ibn Khaldun, the al-qāḍī should recite a fa-
mous ḥadíth of the Prophet Muḥammad, narrated by Umm Salamah, Um-
mul Mu’minin, in which she said:
The Messenger of God (‫ )ﷺ‬never went out of my house with-
out raising his eye to the sky and saying: “O God! I seek ref-
uge in Thee lest I stray or be led astray, or slip or made to slip,

or cause injustice, or suffer injustice, or do wrong, or have

wrong done to me”. 127
The second command instructs the al-qāḍī to observe the qualities
included in the Prophet’s ḥadíth on good manners, which states: “Forbear-
ance, sobriety, and propriety make up one of the twenty-five constituents of
prophethood”. 128
Firmness is a personal quality, which has a great impact on the
judge’s professional performance and is necessary during court proceed-
ings. It was reported that Caliph Umar Ibn Al-Khaṭṭáb preferred to appoint
to the judicial office a person who is firm enough that a suspect would fear
him. 129 An appropriate measure of firmness is necessary to achieve this end.
However, a fine balance has to be drawn by the al-qāḍī, who is expected to
conduct the process effectively as well as to avoid creating in the mind of a
reasonable observer any impression of a lack of impartiality. According to
Adab Al-Qāḍī literature, the al-qāḍī should possess a commanding person-
ality that enables him to control the courtroom. He should not leave a room
for the litigants to disturb the proceedings. 130 However, he should behave
tolerantly with all parties who appear before him. The al-qāḍī should dis-
play patience in court. Recognising the interrelation between these two
qualities, Caliph Alī ibn Abī Ṭālib instructed Malik al-Ashtar to select for
the position of al-qāḍī: “[o]ne who is most patient at probing into matters,
and is most decisive once the truth is revealed and the verdict becomes
clear in his mind”. 131
Adherence to the above-mentioned qualities will ultimately strength-
en judicial prestige. Contemporary judicial scholars admit that juridical
prestige is an important topic that needs to be explored to identify its impli-
cations on the judicial process. 132 Sharí‘ah has long ago addressed that top-
ic and early Muslim scholars allocated an imperative role to prestige in se-
curing the efficiency of the judicial process. Meanwhile, they emphasise
127
Al-Tirmidhi, ḥadíth no. 3472, p. 782, see above note 1.
128
Imam Mālik, 2016, vol. 2, no. 1492, p. 392, see above note 46; Sunan Abī Dāwūd, 2015,
vol. 7, no. 4695, p. 291, see above note 80.
129
130
Ibn Qudāmah, vol. 11, p. 386, see above note 68.
131
132
See, for example, David Klein and Darby Morrisroe, “The Prestige and Influence of Indi-
vidual Judges on the U.S. Courts of Appeals”, in Journal of Legal Studies, 1999, vol. 28, no.
2, p. 371.

that prestige only exists where justice and equality prevail. 133 Thus, judges
should aspire to preserve their judicial prestige, in order to increase the
amount of respect, regard and esteem to their courts. This requires that they
maintain order and decorum in all proceedings before the court and be pa-
tient, dignified and courteous in relation to litigants, jurors, witnesses, law-
yers and others with whom the judge deals in an official capacity. 134
To preserve his prestige, the al-qāḍī should present himself in a dig-
nified manner that commands the respect of others, even in his way of sit-
ting, dressing and grooming. 135 Dignity and esteem should be manifested in
al-qāḍī conduct in his private life and at court, as these qualities boost re-
spect of the public toward those who hold the judicial office and strengthen
the judicial function.
According to Sharí‘ah sources, it is important that the al-qāḍī should
be paid handsomely to preserve his dignity and prestige, Caliph Alī Ibn Abī
Ṭālib instructed Malik al-Ashtar accordingly:
Pay al-qāḍī handsomely enough, this removes his necessity
and there remain no occasion for him to go to others for his
need. Confer on him such a high stature so that persons who
are most close to you could not covet. Consequently, he would
be protected from their malign and back-biting.
From his side, the al-qāḍī should avoid with care any behaviour that
demeans his prestige and high office or diminish his chivalry. Accordingly,
the al-qāḍī in Islam should avoid laughing in the courtroom, 136 or being
humorous with the parties as this could diminish his esteem. 137 The al-
qāḍī’s esteem also requires that he should observe his demeanour inside
and outside the courtroom. The al-qāḍī should neither lend the prestige of
the judicial office to advance his private interests, to show off; nor should
he allow others to convey the impression that they are in a special position
to influence the judge. 138 In any case, according to the majority of early-
classical Muslim jurists, the al-qāḍī should never aspire to judicial prestige
as a modality to brag. 139
133
Ahmed Sharkawy, 2018, p. 3 see above note 121.
134
Ibn Farhoun, 2003, vol. 1, pp. 30–32, see above note 107.
135
Ibid., p. 26.
136
Ibid., p. 33.
137
138
Ibid., pp. 16–17.
139

This illustrates that dignity, esteem and firmness are important safe-
guards against improper influences, inducements, pressures, threats or in-
terferences, direct or indirect, in the judicial affairs, from any quarter or for
any reason.
As seen before, ‘independence’, ‘impartiality’, ‘equality’ and ‘com-
petence and diligence’ are recognised qualities, both in Sharí‘ah and con-
temporary international standards. Below I will explore how Sharí‘ah ad-
dresses these qualities.
3.15.1. Integrity and Recognised Professional Qualities
3.15.1.1. Equality
As recognised in current international standards, a judge in the perfor-
mance of his duties shall ensure the principle of equality before the courts
and the law, and pay the same attention to all participants in the process
regardless of their gender, race, nationality, property and social status, reli-
gion, or membership in public associations. 140
The virtue of equality requires the al-qāḍī to treat both parties to liti-
gation equally from the beginning to the end of the proceedings. According
to Sharí‘ah principles, the al-qāḍī has to treat litigants at his court equally,
so that people could never doubt his impartiality. 141 He should invite them
to his court at the same time, allow them to enter together, and let them sit
before him at similar places and listen to them equally without any distinc-
tion. 142 Imam Al-Khaṣṣāf, had addressed in details the manner in which the
litigants should sit before the al-qāḍī. 143
Equal treatment should apply to both the strong and the weak, the
ruler and the subjects, and so on. 144 Acknowledging that equality is an es-
sential principle for due performance of the judicial office, in his message,
Caliph Umar Ibn Al-Khaṭṭáb advises the al-qāḍī to be aware of that princi-
ple in the way he treats all litigants who appear before him. In the third
paragraph of his message, Caliph Umar Ibn Al-Khaṭṭáb (may God be
pleased with him) instructed Abú Moussa Al-Ash'ari on the qualities that he
140
Draft Codes of Ethics of Judges in the Republic of Kazakhstan, Venice Commission, Stras-
bourg, 2 April 2016, CDL-REF(2016)023, p. 4 (https://www.legal-tools.org/doc/klnjt7/).
141
142
Ibid., p. 353.
143
Al-Shahīd al-Sadr, 1977, vol. 2, pp. 84–87, see above note 26.
144

should administer concerning the litigants who will appear before him. He
wrote to him:
Be equal to the parties appearing before you, and let your fair-
ness be manifested in the way they seat in your divan (court-
room), in your face (facial expressions) and in your judgement,
so that no noble person can ever hope that you will favour
him/her unfairly, nor can a layman ever doubt your fairness;
Caliph Umar Ibn Al-Khaṭṭáb went beyond the required standard of
equality to ask the al-qāḍī to observe his demeanours as a crucial element
to maintain his impartiality during the proceedings, because it is what oth-
ers see. In this respect, Caliph Umar Ibn Al-Khaṭṭáb advises the al-qāḍī to
observe his conduct, which appears in his facial expressions or even in the
way the litigants are seated before him. This approach of Caliph Umar Ibn
Al-Khaṭṭáb demonstrates his aim to preserve public confidence in the in-
tegrity of the judiciary.
The highest standards of equality and impartiality are manifested in
the following statement of Caliph Umar Ibn Al-Khaṭṭáb on the Judiciary:
“let your fairness be manifest in your face”.
Imam Al-Khaṣṣāf emphasises that the al-qāḍī should be equal to the
parties who appear before him, even in the way he looks at them. 145 Ac-
cording to Ibn Qayyim al-Jawziyyah, this clause elaborates how the al-qāḍī
should treat all parties who appear before him on equal terms, without any
distinction. The al-qāḍī should not smile at one of the litigants or give
him/her special attention, as this may manifest a sense of impartiality. 146
According to Imam Al-Khaṣṣāf, al-qāḍī should speak to all litigants in the
same tone of voice. 147
A famous case in the Islamic tradition that illustrates how equality is
well-observed among early Muslim judges is the case of Caliph Alī Ibn Abī
Ṭālib v. the Jew. Caliph Alī lost his armour during the war. When the war
was over and he returned to Kufah-Iraq, he came across the armour in the
hands of a Jew. The Jew said to Caliph Alī: “It is my armour and it is in my
hand”. Caliph Alī brought a claim before the appointed qāḍī (the famous
judge Shuraih) alleging that the Jew had stolen his shield. The al-qāḍī
145
Al-Shaid al-Sadr, 1977, vol. 1, p. 218, see above note 85.
146
Ibn Qayyim al-Jawziyyah, I’lam al-Muwaqqi’in ‘an Rabb al ‘Alamin, Narrated by Abd El-
Rahman El-Wakeel, vol. I, Dar Ehya al Turath al Araby, Beirut, p. 96.
147
Al-Shaid al-Sadr, 1977, vol. 2, p. 92, see above note 85.

asked Caliph Alī to produce his witnesses to prove his claim. Caliph Alī
presented his son and then his emancipated slave. According to al-qāḍī
Shuraih, the testimony of a son in favour of his father or of the emancipat-
ed slave was not admissible, before him; hence he ordered Alī to present
another witness. When Caliph Alī was unable to do so, al-qāḍī Shuraih
dismissed his original claim to the armour. Caliph Alī, the caliph of the
time, emerged from the court cheerfully, even though the judgment went
against him. Then, the Jew said: “The Amir al-Muminin (Caliph Alī)
brought me before his qāḍī, and his qāḍī gave a judgement against him. I
witness that this is the truth, and I witness that there is no god but God and
I witness that Muḥammad is the messenger of God, and that the armour is
your armour”. Caliph Alī responded: “I have made it a gift for you”. 148
3.15.1.2. Impartiality
It is admitted nowadays that improper demeanour by members of the judi-
ciary can undermine the judicial process by conveying an impression of
bias or indifference to the litigants or other persons attending the trials. 149
As such, impartiality is essential to the proper discharge of the judicial of-
fice. It applies not only to the decision itself but also to the process by
which the decision is made. 150 Article 2 of the Basic Principles on the In-
dependence of the Judiciary specifies some of the qualities of the judge,
which reflects some elements of judicial integrity, related to the principle of
impartiality. Accordingly, the judiciary shall decide matters before them
impartially, on the basis of facts and in accordance with the law.
Acknowledging that impartiality is the cornerstone of any judicial
system, Lord Denning once said:
Justice is rooted in confidence, and confidence is destroyed
when the right-minded go away thinking that the judge is bi-
ased. The judge shouldn’t be diverted from their duties by any
extraneous influences, nor by any hope of reward, nor by the
fear of penalties, nor by flattering, nor by indignant reproach.
It is the sure knowledge of this that gives the people confi-
dence in judges.
Accordingly, all partisan political activities should cease upon the
holding of the judicial office, as this may undermine the judge’s impartiali-
148
Ibn Abīʾl-Dam, 1984, p. 258, see above note 32.
149
UNODC, p. 112, see above note 2.
150
See Bangalore Principles of Judicial Conduct, Value 2, p. 3, see above note 6.

ty and lead to public confusion about the nature of his relationship with
other authorities. This approach was recognised in Sharí‘ah more than 14
centuries ago. According to Sharí‘ah’s different sources, judges are re-
quired to exercise maximum discretion in the courts’ proceedings, in order
to preserve their image of impartiality. While in judicial office, a judge
should not choose, in public, one side of a debate over another. In addition,
to preserve integrity, a judge must be careful to avoid, as far as possible,
entanglements in controversies that may reasonably be seen as politically
partisan.
In surat Sad, God advises his messenger David to avoid his own
whims when judging between people:
O David, verily we have placed you as a successor on Earth,
so judge between people in truth, and do not follow your de-
sires – for it will mislead you from the path of God. Verily,
those who wander stray from the path of God (shall) have a
severe punishment, because they forgot the day of reckon-
ing. 151
According to these verses, those who are in positions of authority
should judge according to truth and justice impartially, without any distinc-
tion between litigants.
Certain personal qualities like piety, sobriety and propriety are inter-
acting with the professional quality ‘impartiality’ to keep the al-qāḍī unbi-
ased. A judge will have to excuse himself, if he feels that his judgement
might benefit one of his acquaintances, such as a member of his family,
close relatives or friends.
In addition, the al-qāḍī must not favour one party, for example, by
showing any sign or gesture towards any party to a dispute before him,
which might give suspicion that he is in favour of that party. The foregoing
shows that established rules by Sharí‘ah, assert that the al-qāḍī should per-
form his judicial duties without favour, bias or prejudice.
3.15.1.3. Independence
It is understood that judicial independence is not an exclusive privilege ac-
corded to judges in the performance of their duty, but it is also a right en-
joyed by citizens when they seek justice in courts. There is no doubt that
the concept of ‘integrity’ and the principle of ‘independence’ are comple-
151
Qur’án, surat Sad, 38:26.

mentary and intermingled. Maintaining judicial independence will increase

confidence in the judiciary. If the general public loses faith in the integrity
of judges, this would pose the greatest threat to the independence of the
judiciary.
Influences, inducements, pressures, threats or interferences on a
judge or in his judicial function, direct or indirect, from any quarter or for
any reason, could be described as a threat to judicial impartiality and inde-
pendence and thereby, judicial integrity. The al-qāḍī must not deviate from
the truth for fear of someone’s anger. The al-qāḍī’s esteem should be main-
tained and he should not be exposed to undue approaches of interested par-
ties. Accordingly, the al-qāḍī should not be diverted from his duties by any
extraneous factor, nor by any hope of reward as this could be characterised
as a threat to their independence and therefore integrity.
It is widely believed among Islamic scholars that during the histori-
cal period of the guided Caliphs, the judiciary enshrined both institutional
and personal independence to a level comparable to advanced legal systems
today. Many examples exist within Islamic history to illustrate the extent of
independence early Muslim judges had. An illustrative example is that
when Caliph Umar Ibn Al-Khaṭṭáb diminished any authority of Muawya
Ibn Abi Sufian, the ruler of Palestine at the time, on Al-Qāḍī Ebadah Ibn
Elsamet, to consolidate his independence. 152
3.15.1.4. Competence and Diligence
As previously mentioned, competence and due diligence are essential re-
quirements for assuming the judicial office. These required criteria are
manifested in both the Messages of Caliph Umar Ibn Al-Khaṭṭáb and Ca-
liph Alī Ibn Abī Ṭālib on the Judiciary. Both messages affirm that Sharí‘ah
criteria in that respect surpass the conditions of appointment at the judicial
office in contemporary judicial systems, whether at the national or interna-
tional levels. Competence in the performance of judicial duties requires
legal knowledge and skills of Sharí‘ah sciences. To achieve this level, ac-
cording to Adab Al-Qāḍī literature, the al-qāḍī should be acquainted with
the jurists. The al-qāḍī’s professional competence should be evident in the
discharge of his duties. This will never be achieved unless he has the ca-
152
For more details, see Ibn Al-Atheer, Asad al-ghaba fe merefat al-sahaba, Dar ibn Hazm,
2012, no. 2792, p. 630.

pacity to exercise independent juristic reasoning; in other words, is capable

of practicing ijtihád. 153
3.15.2. Sharí‘ah Perspectives on the Emotional Integrity of Al-Qāḍī
As we have seen before, Sharí‘ah considers the concept of judicial integri-
ty as a moral value, which incorporates a multiplicity of virtues. Unlike
man-made laws and regulations, in Islam, as a divine religion, internal sen-
timent and behavioural responses of the al-qāḍī do count. Sharí‘ah puts
emphasis on the al-qāḍī’s emotions to guarantee that such emotions do not
affect his ability to judge fairly.
Before addressing the impact of the al-qāḍī’s emotions on his
judgements, one should explore the meaning of the word ‘emotion’, as re-
quired by this chapter and to understand to which extent it affects the al-
qāḍī actions and reactions. As illustrated by a renowned physiologist:
“There is no consensus in the literature on the definition of emotions. The
term is taken for granted in itself and, most often, emotion is defined with
reference to a list: anger, disgust, fear, joy, sadness, and surprise”. 154 Some
think that emotions are always associated with thoughts, feelings, behav-
ioural responses, and a degree of pleasure or displeasure. 155 Hence, it is
admitted by some contemporary legal scholars that emotions almost cer-
tainly have a substantial impact on peoples’ behaviour, as well as on judg-
es’ conduct, while carrying on their judicial responsibilities. 156 Therefore,
wisdom requires that ‘emotional integrity’ should be regarded as an essen-
tial aspect of good character, something that also applies to judges.
However, we have to bear in mind that emotions, as opposed to val-
ues, are subjective, and may come into conflict with established judicial
values. Accordingly, they view some emotions as signs of either a lack or
plenitude of integrity. 157 Hate and anger are examples of the latter. Inade-
quate emotional integrity may lead to inappropriate behavioural responses,
153
For more details, see Al-Mawardi, 1989, pp. 89–91, see above note 24.
154
Michel Cabanac, “What Is Emotion?”, in Behavioural Processes, 2002, vol. 60, no. 2, p. 2.
155
See Paul Ekman and Richard Davidson (eds.), The Nature of Emotion: Fundamental Ques-
tions, in Series in affective Science, Oxford University Press, 1994.
156
Terry A. Maroney, “The Emotional Intelligent Judge: A New (and Realistic) Ideal”, in Court
Review: The Journal of the American Judges Association, November 2013, vol. 49, no. 2,
p. 100.
157
See Damian Cox, Marguerite La Caze and Michael P. Levine, Integrity and the Fragile Self,
Routledge, 2018.

which will negatively affect the judicial performance of the al-qāḍī and
compromise his judgements.
As a Western scholar recently observed, like any other persons, judg-
es have emotions, and their emotions may influence the decision-making
process. 158 Therefore, a judge with emotional integrity, has strong core val-
ues, such as serenity and honesty, that subsequently influence his judicial
‘outer’ conduct.
As stated several decades ago by a renowned judicial authority:
Deep below consciousness are other forces, the likes and the
dislikes, the predilections and the prejudices, the complex of
instincts and emotions and habits and convictions, which
make the man, whether he be litigant or judge. 159
While existing codes of judicial conduct, both at the international and
national levels, do not address certain emotional characteristics of judges,
such as hatred, anger, empathy and patience, Sharí‘ah addressed such emo-
tions, in details, in its different sources. Moreover, as we will see below,
when addressing the al-qāḍī’s emotions, Sharí‘ah does not only deal with
his expressions, anger and what he likes, but it does also address his deep
inner state of mind, to guarantee his emotional balance and harmony.
As we have seen before, the Qur’án encourages the believers to do
justice in all circumstances, without regard to their emotional inclinations
for others or vice versa. It is inspiring to see how the Qur’án addressed this
issue 1,400 years ago in surat Al-Ma’idah, in which God commanded the
believers to conquer their emotional inclinations and do justice, even to-
wards their enemies. 160
In his letter to Mālik Al-Ashtar, Caliph Alī Ibn Abī Ṭālib addressed
the al-qāḍī’s emotions and inner-feelings in the context of the judicial pro-
cess. He advised him to select for the position of the al-qāḍī “one who does
not have any tendency to covetousness”. And to guarantee ample emotional
balance and serenity of the al-qāḍī during his work Caliph Alī Ibn Abī
Ṭālib asked Mālik Al-Ashtar to appoint “one who does not vain to flattery
158
Maroney, 2013, p. 100, see above note 156.
159
Benjamin N. Cardozo, The Nature of the Judicial Process, Yale University Press, 1921,
p. 167.
160
See Tafsir Ibn Kathir (interpretation of Noble Qur’án in English), Darussalam, Riyadh, Jan-
uary 2000, vol. 3, p. 122.

and who is not easily tempted”. 161 This shows how Sharí‘ah is not only
concerned with the outer expressions of the judge during adjudication, but
also with his inner emotions. In this context, early Muslim jurists required
the al-qāḍī to have a balanced attitude with peace of mind and serenity. 162
Acknowledging the fact that the al-qāḍī’s emotions could affect his
conduct towards the litigants, and therefore could be very detrimental to
the cause of justice, Sharí‘ah instructs the al-qāḍī to avoid anger, anxiety
and weariness during the performance of his judicial duties. 163 He should
also avoid to be annoyed by litigants. The Prophet Muḥammad (‫ )ﷺ‬under-
scored this in one of his famous ḥadíth: “Let al-qāḍī not pass a judgment
when he is angry”. 164 359F
In the ninth paragraph of his Message on the Judiciary, Caliph Umar

Ibn Al-Khaṭṭáb instructed Abú Moussa Al-Ash'ari to “[b]e cautious of anger,
anxiety, weariness, and impatience when adjudicating on people’s disputes”.
Adab Al-Qāḍī literature provide more example of certain emotions
that could prevent the al-qāḍī from judging adequately. For example, he
must not give judgement when under emotional strain. The reason for this
is very simple; when the al-qāḍī is emotionally disturbed, his reasoning
power and judgement may be impaired.
This leads to the fact that that the al-qāḍī should retain peace of mind
while hearing cases brought before him, as this will enable him to focus on
the hearing with full attention so that he will be able to decide fairly and
correctly. Subsequently, the al-qāḍī should not decide cases when he is an-
gry, hungry, worried or suffering weariness. 165
Contemporary judicial systems in some Arab States acknowledge the
fact that some emotions could affect the judge’s eligibility to decide a case
before him; although they consider them as internal feelings that are diffi-
cult to assess in most cases, however, they relate to the judge’s conscience.
In this sense, the Egyptian Court of Cassation has established that: “The
state of anger, the desire to condemn and the feeling of embarrassment are
161
162
163
164
Sunan Abī Dāwūd, the Book of Judgements, vol. 5, no. 3544, p. 582.
165
Al-Shahīd al-Sadr, 1977, vol. 1, p. 340–341, see above note 26.

all internal issues within the judge’s mind-set, which relate to his disposi-
tion and conscience”. 166
However, if such emotions are established, any party to the dispute
can challenge the judge’s eligibility to perform his judicial function, with
respect to the case over which he is presiding, because of a possible lack of
impartiality. In such instance, the judge can recuse himself from the case.
Integrity requirements oblige the judge to disqualify himself in any pro-
ceeding in which his impartiality might reasonably be questioned. However,
in some jurisdictions, unless the legislator has left the matter of determin-
ing the existence of such emotions to the judge’s discretion, to what reas-
sures him and to what rests his sentiment. 167
Interestingly, Sharí‘ah does not limit the conditions that prevent the
al-qāḍī from deciding a case to emotional disturbance or strain only. It goes
further to prevent the al-qāḍī from deciding cases when his physical condi-
tions could affect his well-being, feelings or reactions. In this regard the
Prophet Muḥammad (‫ )ﷺ‬said: “Let the judge not pass a judgment unless he
is comfortable (should not be in state of hunger or thirst)”. 168 36F
Notably, Sharí‘ah places noticeable considerations on the well-being

of the al-qāḍī during the performance of his judicial function, as this will
guarantee that he will be able to provide full attention to his work. For ex-
ample, he should avoid fatigue and must not weaken himself with non-
obligatory fasting when he is deciding cases.
Many examples of certain emotions that could prevent the al-qāḍī
from judging fairly are found in Adab Al-Qāḍī literature. According to
Adab Al-Qāḍī, the al-qāḍī should not sit on the bench or decide on a case
when he is unduly tired or overjoyed. He goes further to stipulate that he
must not decide a case when sleep overcomes him, nor when he is hungry
or has overeaten. 169 Moreover, the al-qāḍī’s emotions should not influence
him to show compassion to one of the parties in a dispute before him.
It is argued that the psychology of emotional regulation can help
judges learn how to prepare realistically for, and respond thoughtfully to
166
Appeal No. 25649 before the Egyptian Court of Cassation, Judicial Year 64, Technical Bu-
reau 47, p. 1362.
167
Ibid.
168
Al-Baihaqi, 2011, pp. 306–307, see above note 67.
169
Imam Ibn Al- Kāss, 1989, pp. 157–159, see above note 112.

the emotions they are bound to feel. 170 Of course, this requires skilful emo-
tional management and strong emotional integrity. Apparently, a judge with
emotional integrity is a judge who can control his demeanours.
Evidently, Sharí‘ah is well equipped to tackle judges’ emotions dur-
ing the performance of their duties. Recalling the divine nature of Islam, its
affiliation with inner peace (iṭmīnān), and its call for contentment (riḍā)
and serenity (sakīna), a faithful Muslim judge would rely on his religious
convention and Prophetical teachings to manage his anger, anxiety, weari-
ness and impatience.
We can infer from the foregoing that Sharí‘ah does not only inspire
certain emotions in the al-qāḍī, such as serenity and peace of mind, which
lead to emotional balance and harmony. It also asks the al-qāḍī to detach
himself from any type of personal emotions that may influence his judg-
ment. It even gives regard to the al-qāḍī’s inside inclinations, such as a
tendency towards avariciousness and temptations.
To summarise, according to Sharí‘ah, a ‘good judge’, is one who is
not influenced in his decisions by personal desires, or by fear or hope, one
who has no inclination towards favouritism, but takes a neutral attitude to-
wards all that comes before him, and finally, one who could manage his
anger, anxiety, weariness, and impatience.
3.15.3. A Proposed Definition of Judicial Integrity Derived from
Sharí‘ah Sources
As shown in this chapter, in Sharí‘ah, the basis of judicial integrity, as an
ethical value, is found in the conscientiousness of the person concerned, as
a virtue derived from the religion itself.
The approach of Sharí‘ah towards integrity as a moral value is re-
flected in the approach of the second United Nations Secretary-General
Dag Hammarskjöld’s understanding of integrity, in which he associates it
with purity of intention and equates it with conscience. 171
One important character of judicial integrity as established in this
chapter is that it motivates the person in question to adhere to certain quali-
170
Maroney, 2013, p. 113, see above note 156.
171
ered to Congregation at Oxford University, 30 May 1961”, in Wilder Foote (ed.), The Serv-
ant of Peace: A Selection of the Speeches and Statements of Dag Hammarskjöld, Secretary-
General of the United Nations, 1953-1961, The Bodley Head, 1962, p. 348 (https://www.
legal-tools.org/doc/64bcae/).

ties, mainly uprightness and propriety, thus it distances the person con-
cerned from malice and suspicion.
On the basis of the provisions of Sharí‘ah sources stipulated in this
chapter, judicial integrity can be defined as: a core judicial value, which
reflects a holistic concept incorporating intrinsic core personal virtues that
those who hold a judicial office should possess, such as ‘conscientiousness’,
‘uprightness’, ‘propriety’, ‘dignity’, ‘esteem’, ‘firmness’ and ‘courtesy’,
requiring them to distance themselves from malice and avoid suspicion, by
refraining from any conduct that could cast any doubt on their behaviour,
while fully respecting other professional qualities such as ‘independence’,
‘impartiality’, ‘equality’, and ‘competence and diligence’.
An in-depth comprehension of the concept, from an Arab Sharí‘ah
perspective, reveals that judicial integrity is based on and revolves around
the core value of distancing oneself from malice and avoiding attracting
suspicion, thus freeing oneself from any corrupting influences. A person
who possesses such quality is, ultimately, expected to discharge his judicial
duties according to the highest standards of integrity. Furthermore, adher-
ence to the ‘elements of integrity’ stipulated in this definition, would allow
those who are appointed in any judicial position to preserve their sacred
judicial function.
As we have seen, emotions might have a great impact on the al-
qāḍī’s judicial performance. This raises the question whether there is a re-
quirement of ‘emotional integrity’ for those who occupy judicial positions
whether at the national or international levels.
3.15.4. Some Indications of Judicial Integrity from a Sharí‘ah
Perspective
The existence of a judicial performance-indicator mechanism may be im-
portant to assess judges’ conduct, and ensure the independence, impartiality
and fairness of the judiciary.
From my analysis and interpretation of Sharí‘ah sources specified in
this chapter, I can infer the following indications of the existence of judicial
integrity:
• abide by Islamic judicial traditions and courts’ practice;
• acquaintance with the jurists, as well as with the pious;
• avoid malicious and corrupt behaviour;

• uphold the highest standards of judicial characteristics, such as im-

partiality, righteousness, dignity, esteem and propriety; and
• consistency, coherence and equality in judicial decision-making.
3.15.5. Loss of Integrity
It has been established in this chapter that, according to Sharí‘ah, the al-
qāḍī should distance himself from malice and avoid suspicion; otherwise
he would lose his integrity. Consequently, he should behave in a manner
that does not cast doubt upon his independence, integrity and impartiality.
As integrity is a core value that is an ornament of the judicial function, be-
ing without it, the judiciary loses its credentials.
As we have seen before, through different sources of Sharí‘ah, the
concept of judicial integrity, as understood in the Islamic tradition, is a cen-
tral value that contains a variety of virtues attached to the judicial office. It
is, therefore, very important that the al-qāḍī’s conducts is within the pa-
rameters set by Sharí‘ah. The al-qāḍī should observe the standards of in-
tegrity set by Sharí‘ah, in all its components, and should be held accounta-
ble in case if he infringes these standards. This is totally understood, as al-
qāḍī misbehaviour could erode the credibility of the judicial institution in
the public mind, which is so destructive to the independence of the judici-
ary.
However, it is unfortunate that in current judicial systems, not every
violation of the judicial integrity qualities, as illustrated in this chapter,
leads to disciplinary action. Notwithstanding this fact, in some judicial sys-
tems, if a certain violation is not grave, a judge could be held accountable
on the basis of his overall conduct. For instance, in the Egyptian judicial
system, it is established that judicial integrity is judged on the basis of the
totality of the behaviour of the person concerned. This means that the ac-
cumulation of infringements of judicial integrity qualities might lead to
removal from office, even though each of those infringements alone is not
alone punishable. According to relevant decisions by the respected Cham-
ber of the Egyptian Court of Cassation, integrity must be judged “on the
basis of the aggregate behaviour of the judge concerned”. 172
Accordingly, when assessing certain conduct of a judge under scruti-
ny, to decide on his eligibility, during disciplinary measures, focus should
172
Court of Cassation, Civil Chamber, Appeal no. 5, Judicial Year 52, Session 18/1/1983, Tech-
nical Bureau Year 34, p. 5.

be on the ‘wholeness’ of the person concerned and on all his past and pre-
sent acts, by examining both his personal and judicial integrity. In the final
analysis, the question that must always be asked is whether in the particular
social context and in the eyes of a reasonable observer, the judge has en-
gaged in an activity that could objectively compromise his or her inde-
pendence or impartiality or that might appear to do so. As stipulated in Ca-
liph Alī Ibn Abī Ṭālib Letter on the Judiciary, Islamic rulers used to period-
ically evaluate the professional performance and behaviour of the judges
they had previously appointed. 173 In case of biased judgements, 174 or estab-
lished corruption or misconduct, the judge could be removed from office.
3.15.5.1. Fisq (Corruption): A Flagrant Threat to Integrity
Corruption of members of the judiciary undermines the rule of law and af-
fects public confidence in the judicial system. 175 Therefore, the United Na-
tions Convention against Corruption, in its Article 11, obliges States Parties,
in accordance with the fundamental principles of their legal systems and
without prejudice to judicial independence, to take measures to strengthen
integrity and to prevent opportunities for corruption among members of the
judiciary, including rules with respect to the conduct of members of the
judiciary. 176 Since the mid-1990s, the interplay between corruption, good
governance, and integrity has become a crucial issue in the global setting.
Situations and abuses can challenge one’s personal integrity and create a
conflict between the person and the judicial institution. Therefore, a judge
acting in a way that is corrupt (for example, through accepting bribes or
other favours to make favourable judicial decisions), acts without integri-
ty. 177
Sharí‘ah despises corruption and the corrupted, and has attributed
prodigious emphasis on issues related to the incorruptibility of the al-qāḍī.
To ensure that a judge’s behaviour and conduct is acceptable to the public,
and does not provide an opportunity for people to doubt his integrity or im-
173
174
175
See the Economic and Social Council, Strengthening basic principles of judicial conduct, 27
July 2006, ECOSOC 2006/23 (https://www.legal-tools.org/doc/yiyqyy/).
176
UN General Assembly, United Nations Convention against Corruption, 21 November 2003,
A/RES/58/4 (https://www.legal-tools.org/doc/hwuihi/).
177
Agata Gurzawska, Institutional Integrity, SATORI, European Commission’s Seventh Frame-
work Programme, June 2015, p. 5.

partiality, Muslim jurists require that a judge should refrain from any con-
duct that could cast doubt in his behaviour. Therefore, a judge should avoid
any activities that may attract criticism or rebuttal from the public.
In his famous letter to Mālik Al-Ashtar on the Judiciary, Caliph Alī
Ibn Abī Ṭālib had eloquently used a short paragraph reflecting a specific
character that should not exist in al-qāḍī that might lead him to corruption.
As mentioned before, he advised Mālik Al-Ashtar to select: “One who does
not have any tendency to covetousness”. 178 Moreover, he advised him to:
“pay him handsomely enough, that removes his necessity and there remain
no occasion for him to go to others for his need”, a theme touched on
above. The aforementioned approach of Caliph Alī Ibn Abī Ṭālib could be
considered as a preventive measure of graft and corruption of judges.
3.15.5.2. Disciplinary Measures in Sharí‘ah
Sharí‘ah has recognized forms of disciplinary measures for judges, such as
disqualification and removal from office, in case they lose their judicial
integrity.
3.15.5.2.1. Disqualification
The meaning of the term ‘disqualification’ might vary in the Arab and Is-
lamic States and differ from the meaning prevalent in Western States. The
term ‘disqualification’ in the Arabic language is not only restricted to los-
ing impartiality, competency of other professional qualifications, as it ex-
tends to cover some personal qualities. In general, a judge could be dis-
qualified only for any conduct that could undermine the judiciary or the
judicial institution.
In a book titled ‘Fair Trial, and Values and Traditions of the Judici-
ary’, a renowned Egyptian judicial authority stated:
The value of the eligibility/qualification, in the judicial do-
main, means that the judge or the prosecutor possesses good
manners and reputation, absolute objectivity, in his judicial
convection and the application of the law, impartiality mani-
fested in avoiding inclination towards personal desires and
178

whims. Infringement of these values may result in disciplinary

measures that could lead to his disqualification. 179
3.15.5.2.2. Removal from Office

In the majority of legal systems, removal from office might only occur in
cases of infirmity of body or mind or serious misbehaviour according to
established principles of Sharí‘ah. In cases of clear proof of corruption
(fisq) on the part of a judge, he could be disqualified and removed from
office, not only the case. 180 According to the foregoing, the al-qāḍī could
be subjected to disciplinary measures, not merely for professional reasons,
but also because of allegations about his personal misbehaviour. It is worth
noting that this approach has already been adopted by the European Court
of Human Rights. It has previously acknowledged that a judge’s duty to
observe professional ethics may impinge to a certain extent upon his or her
private life. 181
The question of when al-qāḍī may be removed from office is of vital
importance in Sharí‘ah. The literature on al-qāḍī has clearly determined
three mechanisms for the removal of al-qāḍī from office:
1. The al-qāḍī may remove himself, with the knowledge of the Muslim
ruler;
2. The al-qāḍī should remove himself or be removed by the ruler In
case of fisq;
3. The Islamic ruler may remove the al-qāḍī from his office.
Al-fisq is a shameful quality both in the Arab traditions and Sharí‘ah.
In Arabic language it means departing from the right path and disobedi-
ence. 182 The term fisq may also be understood as ‘impious’ or ‘corrupt’ that
may constitute an act of debauchery; thus, the term refers to a person of
loose character who is guilty of committing major sins. It reflects severe
disobedience of the Commands of God and violations of Sharí‘ah norms as
well as deviating from the path of truth, as such it diminish and important
Islamic judicial quality, which is ‘uprightness’.
179
Serry Siam, Al-muhakamah al-monsifa wa keiam wa takaleed al-qadaa, Dar al-Shorouk,
first edition, 2017, p. 67.
180
181
See Özpınar v. Turkey, no. 20999/04, 19 October 2010.
182
Muhammad Taher, al-garh we al-taedeel bayen al-mutashadedin we al-mutasahlin, Al-Dar
Al-Arabia Llketab, Tunis, 1997, p. 366.

Imam Al-Shawkany cited the opinion of Imam al-Qurtubi which in-

dicated that the term fisq meant by Sharí‘ah is: actions that lead to a devia-
tion from the obedience of God and may be categorised as ma’siah (sin). 183
Obviously, the term fisq covers cases of violation of personal and profes-
sional integrity. Personal and professional misconduct fall under this term.
Accordingly, the al-qāḍī may be removed from office if he is found in a
state of fisq, 184 in case he is engaged in serious corruptive conduct or mis-
behaviour that clearly renders him unfit to discharge his duties.
Commonly, in most legal systems, judges are removed from office in
cases of serious ethical or criminal misconduct, such as accepting bribes,
sexual misbehaviour, obstructing an official proceeding, and making false
statements. If it is proven that the judge has violated terms of judicial integ-
rity that affects his personal judicial credibility, which poses a threat to the
administration of justice, then he could be dismissed from the judiciary ac-
cording to applicable disciplinary mechanisms.
It has to be mentioned that the rigorous requirements for the ap-
pointment in the judicial office and the high standards of ethical conduct
help to minimize the resort to the removal mechanism.
To maintain the appearance of judicial independence, Islamic law
does not permit the ruler to remove the al-qāḍī from office unless in cases
of fisq or serious acts of misconduct that undermine the public confidence
in the judiciary. In this case, the ruler shall appoint another person who is
much better qualified for the post. 185 If a judge is removed without a valid
reason, his appointment remains intact.
3.16. Conclusion
We have seen in this chapter that Islam emphasises the function of the judi-
ciary as it is, according to Sharí‘ah principles, close to piety. Therefore, a
review of Sharí‘ah sources shows that judges are selected after a credible
inquiry by the Caliphs and other Muslim rulers to ensure that the judge be-
ing appointed is reliable and fulfils the prerequisite qualities required by
Sharí‘ah.
183
Imam Al-Shawkani, Fath Al-Qadir Al-Jame, Youssef Al-Ghoush (ed.), Dar Al-Marefah,
Beirut, vol. 1, pp. 40–41.
184
Al-Shaid al-Sadr, 1977, p. 129, see above note 85.
185
Ibn Farhoun, 2003, p. 15, see above note 107.

In-depth research in Sharí‘ah sources has revealed that the term ‘in-
tegrity’ refers to a combination of values intrinsic in a person’s character
and is an established norm in Sharí‘ah. In the context of the judicial func-
tion, it refers to certain qualities manifested in the al-qāḍī’s personal and
professional characteristics during the performance of his judicial duties.
One important core value that reflects the concept of judicial integrity in
Sharí‘ah is to distance oneself from malice and avoid attracting suspicion,
thus freeing oneself from any corrupting influences.
This chapter has also affirmed that integrity is essential to the proper
administration of justice, and that Sharí‘ah provisions adopt a high stand-
ard approach to judicial integrity and considers it as a moral value and a
legal requirement for the discharge of the judicial function. Further, it has
asserted that integrity is a condition of general ethical conduct and virtue
both before and after appointment, in Sharí‘ah, which is honoured in na-
tional legal systems of Islamic countries.
Interestingly, the research in this chapter has revealed that the rules
of Sharí‘ah on integrity converge with the ancient Roman/Greek ‘virtue
ethical theory’. Further research may show the interactions between these
traditions. Apparently, the meaning of judicial integrity does not differ sig-
nificantly between various traditions, and should be recognised as a com-
mon, universal legal quality-requirement to hold judicial office.
However, notwithstanding this, Sharí‘ah would seem to be more en-
compassing than contemporary approaches to judicial integrity, stipulated
in modern international documents, and granted special attention to the
management of judges’ emotions during the performance of their judicial
function, acknowledging that inadequate emotional integrity may undesira-
bly influence the judicial decision-making process.
In my view, the qualities of judges required in the Messages on the
Judiciary of the two guided Caliphs Umar Ibn Al-Khaṭṭáb and Alī Ibn Abī
Ṭāleb, exceed those that exist in contemporary international documents. As
stipulated in those messages, we should ask ourselves whether we nowa-
days find judges whose fairness is manifested in their face? One who is
cautious of anger, anxiety, weariness, and impatience when adjudicating
people’s disputes? One who does not have any tendency to covetousness?
One who is immune to flattery and elation? I think there are very few who
have such characteristics and are thus qualified for the appointment to such
a sacred position as judge.

According to my reading of the Sharí‘ah provisions stipulated in this

chapter, and beyond, based on logical reasoning, derived from fiqh, I con-
cluded that the judicial integrity concept entails two meanings: personal
integrity and professional integrity. A person who holds judicial office
should have and demonstrate both qualities. The stringent requirements of
both personal and professional judicial integrity in Sharí‘ah explain why
one who is appointed as a judge is slaughtered without a knife, according
to the Prophet Muḥammad’s (‫ )ﷺ‬ḥadíth.
On the basis of provisions of Sharí‘ah sources stipulated in this
chapter, I propose the following definition of judicial integrity:
A holistic concept that incorporates the intrinsic core personal
and professional qualities that those who hold a judicial office
should possess, which requires them to distance themselves
from malice and avoid suspicion, by refraining from any con-
duct that could cast any doubt on their behaviour, while fully
respecting equality, fairness, impartiality, and independence of
the judiciary.
I believe that Sharí‘ah standards on integrity, which are spread out in
its sources, could assist in developing a model code of conduct that can
help to reinforce judicial ethical standards and to create a culture of integri-
ty in relevant judicial systems. It may also assist various judicial institu-
tions not only to render their judges ethically stronger, but also to consoli-
date their integrity. Developing such a code in international justice institu-
tions may contribute to holding those who violate judicial ethics accounta-
ble. The existence of personal and professional judicial integrity will create
the realisation and the public perception regarding the efficiency and trans-
parency of the judicial system and will ultimately raise the public’s trust in
that system.
I hope to have conveyed to the Western reader, the normative struc-
ture of the concept of judicial integrity that exists in Sharí‘ah, in a manner
that inspires more terminological clarity. The hope is that the values on ju-
dicial integrity included in this chapter could assist in realising the highest
standards of judicial integrity, in a way that could provide concrete ideas
for the strengthening of judicial integrity in national and international insti-
tutions. For the purposes of this book, it bears repeating that the standards
that international judges must uphold must be set even higher than at the
national level.

An in-depth examination of available jurisprudential Sharí‘ah

sources on the subject-matter goes beyond the scope of this chapter. Other
colleagues or institutions may have curiosity to continue researching this
topic, in more depth. Indeed, the Centre for International Law Research
and Policy (CILRAP) deserves tribute for supporting projects that cover
classical jurisprudential sources of Sharí‘ah. We have seen that early-
classical Muslim jurists left the comprehensive fiqh treatise Adab Al-Qāḍī.
This wealth of knowledge should be translated from Arabic into other lan-
guages, with commentaries, to assist non-Arabic speaking readers to have
access to that original Sharí‘ah literature, to see how Sharí‘ah has adopted
the highest standards of integrity for the discharge of judicial responsibili-
ties. I believe that this could help to revive Dag Hammarskjöld’s legacy of
‘integrity’ as a standard-bearer for civil servants and high officials in inter-
national courts.

Appendix I: The Message of Caliph Umar Ibn Al-Khaṭṭáb on the

Judiciary
The Message of Caliph Umar Ibn Al-Khaṭṭáb on the Judiciary (may God be
pleased with him) to Abú Moussa Al-Ash'ari upon entrusting him with the
mandate of adjudicating on people’s disputes; which should be considered
a judge’s charter.
In the Name of God the Merciful and the Gracious
• Adjudication in (Islam) is based on a precise obligation (Qur’án) and a
followed Prophetic Tradition (sayings and practices of Prophet Mu-
hammad, peace be upon him);
• Comprehend any dispute brought before you, and note that it is futile
to reach a right judgement without executing it;
• Be equal to the parties appearing before you, and let your fairness be
manifested in the way they seat in your divan (courtroom), in your
face (facial expressions) and in your judgement, so that no noble per-
son can ever hope that you will favour him/her unfairly, nor can a
layman ever doubt your fairness;
• The burden of proof is on the plaintiff, and if the defendant denies,
he/she must take the oath;
• He who claims an infringed entitlement or missing evidence should be
allowed to provide the evidence within a deadline. If he/she supplies
the evidence, grant him/her the right he/she claims, otherwise rule
against him/her. In that way, you give the plaintiff a fair chance to
prove his/her right/entitlement and place the case under proper scruti-
ny;
• If you render a judgment and then later find out, after re-visiting it,
that you were not right, do not hesitate to renounce that judgment in
order to establish justice, as justice is primordial and should not be de-
viated from. A revision of unfair judgement is better than establishing
injustice;
• Muslims are credible witnesses whose testimony should be admitted,
except those proven to have committed punishable sins, those known
to have given false testimony, or those suspected of bias due to loyalty
or kinship. Only God Almighty knows what is in the minds of people.

Therefore, no one should be condemned without reliable evidence or

proper oath;
• If a case is brought before you and you cannot find applicable rule(s)
neither in the Qur’án nor in the Sunnah, then you must resort to logi-
cal reasoning, and use analogy, comparison and parallelism (to reach a
judgement). Consequently, apply the ruling that you consider closest to
what is right and fair and that would please God Almighty;
• Be cautious of anger, anxiety, weariness, and impatience when adjudi-
cating on people’s disputes, and never be annoyed with litigants or de-
ny a litigation. Judging fairly is rewarded by God Almighty and
praised by people. He whose heart’s intention is to establish justice
and rule fairly, even if his/her rulings would be against his/her own in-
terest, will be protected and supported by God Almighty, whereas
he/she who, out of hypocrisy, acts contrary to his/her heart’s convic-
tion, will be disgraced by Him. God accepts only pure and honest
deeds and intentions;
• Contemplate and never forget God’s rewards as manifested in both His
worldly blessings and plentiful mercy in the Hereafter.

Appendix II: The Message of Alī Ibn Abī Ṭālib to Mālik Al-Ashtar on
the Judiciary
The Message of Alī Ibn Abī Ṭālib to his commissioner in Egypt, Mālik Al-
Ashtar on the Judiciary is to be considered as one of the most comprehen-
sive Sharí‘ah instruments on the concept of judicial integrity:
For adjudicating on people’s disputes, select one whom you
trust, is by far the best among your subjects in your view; one
who is patient and imperturbable; one who is not influenced
by the importunity of the litigants; one who does not persist if
he commits an error, and hold back the truth once he knew it;
one who does not have any tendency to covetousness, nor is
satisfied with cursory understanding (of a matter brought be-
fore him) without going thoroughly into it (scrupulously goes
beyond that to contemplate the case before him to the maxi-
mum extent); one who stops whenever he is faced with doubts
and only approves reliable evidence; one who is least repined
at the quarrel of litigants; one who is most patient at probing
into matters, and is most decisive once the truth is revealed
and the verdict becomes clear in his mind; and one who does
not vain to flattery and is not easily tempted. Few are those
who meet all of these criteria. Thereafter, check regularly his
judgements, and pay him handsomely enough, that removes
his necessity and there remain no occasion for him to go to
others for his need. Confer on him such a high stature so that
persons who are most close to you could not covet. Conse-
quently, he would be protected from their malign and back-
biting.
This letter is to be considered as a model of the qualities that a per-
son should have to be selected as al-qāḍī – all components of ‘integrity’.
While it speaks of both personal and professional judicial qualities, it plac-
es more emphasis on the intrinsic values of the person in question. Accord-
ing to Caliph Ali’s letter, the al-qāḍī should be the most qualified, yet vir-
tuous, patient, honest, truthful and pious person in order to be selected for
this position. Indeed, the al-qāḍī’s criteria enumerated in Alī Ibn Abī
Ṭālib’s Letter to Mālik Al-Ashtar fulfil the judicial integrity requirements.
The Letter covers certain safeguards that protect the al-qāḍī from
malice, corruption and temptations. Specifically, it requires the governor to
observe certain virtues for judicial office, including pure intention, having
an upright character, and immunity from greed.

4
______
Sir Thomas More and Integrity in Justice

Gunnar M. Ekeløve-Slydal *
Beati quorum via integra est: qui ambulant in lege Domini 1
Integrity issues in international organizations have gained wide attention in

recent years due to extensive media coverage of problematic practices and
non-compliance with codes of ethics by actors within such organizations.
Particularly shocking were revelations by eight international media organi-
zations of the European Investigative Collaborations in 2017 that under-
mined the credibility of the International Criminal Court (‘ICC’).
The revelations included serious allegations that members of the ICC
Office of the Prosecutor had helped the first Prosecutor of the ICC, Luis
Moreno-Ocampo, to make money by assisting persons suspected of having
aided ICC crimes in Libya. There were also issues connected with situa-
tions under ICC investigations in Côte d’Ivoire and Kenya as well as some
broader issues linked to the heritage of the first Prosecutor. 2
*
Gunnar M. Ekeløve-Slydal is Acting Secretary General, Norwegian Helsinki Committee,
and Adjunct Lecturer at the University of South East Norway. He studied philosophy at the
University of Oslo and worked for many years for the Norwegian Centre for Human Rights
at the University of Oslo and as Editor of the Nordic Journal on Human Rights. He has writ-
ten extensively on human rights, international institutions, and philosophical themes, includ-
ing textbooks, reports, and articles. The author wants to extend his gratitude to Berit Linde-
man for input to Section 4.1.1. on election observation and Section 4.1.2. on corruption in
the Parliamentary Assembly of the Council of Europe.
1
“Blessed are the undefiled in the way, who walk in the law of the Lord.” Book of Psalms
119:1, King James Version. An alternative translation from the New International Version
reads as follows: “Blessed are those whose ways are blameless, who walk according to the
law of the Lord”.
2
For a short account of the issues, see Pierre Hassan, “Scandals rocks international criminal
court”, Justiceinfo, 8 October 2017 (available on its web site). For the broader issues, see
Morten Bergsmo, Wolfgang Kaleck, Sam Muller and William H. Wiley, “A Prosecutor Falls,
Time for the Court to Rise”, FICHL Policy Brief Series No. 86 (2017), Torkel Opsahl Aca-
demic EPublisher, Brussels, 2017 (http://www.legal-tools.org/doc/41b41a/). At the heart of
many of the issues related to the ICC Office of the Prosecutor may be Mr. Moreno-
Ocampo’s unwillingness to follow-up on the ground-breaking work of the ICC preparatory
team, see Morten Bergsmo, Klaus Rackwitz and SONG Tianying (eds.), Historical Origins

In the following, I engage in finding out what Sir Thomas More

(1478–1535) may offer in terms of principles and strategies on how to
strengthen personal and institutional integrity within international justice
institutions. His image is on the cover of this book, and I have had the hon-
our of writing the chapter on him. What can an outstanding representative
of so-called ‘Northern Humanism’, a friend and ally of Erasmus of Rotter-
dam (1466–1536), and a statesman serving in the highest positions during
large parts of King Henry VIII’s reign (1509–47) offer to contemporary
debates about integrity issues, in particular in international justice institu-
tions?
It is well known that More, despite his long and outstanding service,
was unjustly executed by the King. What is less well known is the reason
More offered so as not to give in to the immense pressure to condone the
King and Parliament abolishing the independence of the Church of Eng-
land and making the King its head. More dealt with the issue of integrity in
many of his works, including his famous Utopia (1516) 3 and The History
of King Richard the Third (1557). 4 An underlying question for much of his
political writings was how a wise man with integrity (“a first citizen”) 5
could serve a King or prince with tyrannical inclinations. (The references
to the “King” and “Kings” throughout this chapter should be understood as
a legacy of More’s times and for consistency, not a deliberate exclusion.)
Central to More’s thinking on how to develop and preserve integrity
was to train yourself to be faithful to your conscience. He also frequently
referred to respect for the law, which in his view justly limited the power of
the King and protected the right to dissent. Leaders should serve the people,
not their own narrow interests.
Among the reasons to include More in contemporary discussions on
integrity is also that he was the first English writer to use the word ‘integri-
of International Criminal Law: Volume 5, Torkel Opsahl Academic EPublisher, Brussels,

2017 (http://www.legal-tools.org/doc/09c8b8/).
3
Utopia is available in several editions. I consulted the following: Thomas More, Utopia,
Cambridge University Press, 2016 [1516].
4
Thomas More, The History of King Richard the Third, in Richard S. Sylvester (ed.), The
Complete Works of St. Thomas More, vol. 2, Yale University Press, New Haven, 1963.
5
Thomas More, epigram 111.

4. Sir Thomas More and Integrity in Justice
ty’, being well aware of the concept’s both classical and biblical roots. 6 For
him, integrity signifies consistency in thought, word and action, based on
conscience and comprehensive understanding. It is the fruit of a successful
struggle to be just one person, rather than to be several. It is “what makes a
person a unity rather than a duplicity. Integrity makes a particular life re-
semble a good poem rather than a dubious collection of fragments, with
doubtful authorship”. 7
This chapter deals with the arguments and stance of Thomas More,
situating them in a context of modern integrity. The first section deals with
integrity issues recently faced by international organizations, such as biased
election observation, lack of quality control and transparent procedures in
both the Council of Europe and the International Criminal Police Organiza-
tion (‘INTERPOL’), acquittals in the international tribunals, as well as mis-
conduct by members of the ICC Office of the Prosecutor (Section 4.1.). To
ground the discussion of More’s relevancy for current integrity discussions,
I provide a typography of these problems, focusing on individual versus
institutional integrity, politicization or instrumentalization of institutions,
and the specificities of professional integrity (Section 4.2.). These chal-
lenges to integrity form the basis upon which we turn to More for guidance,
which is the subject of the following sections. The chapter progresses with
a discussion on More’s thoughts on tyranny and how to confront it (Section
4.3), before turning to More as a statesman and his views on heresy (Sec-
tion 4.4.). Finally, the chapter turns briefly to More’s conflict with Henry
VIII (Section 4.5.), before concluding with More’s lessons as well as re-
turning to the topic of integrity in justice (Sections 4.6. and 4.7.).
4.1. Integrity Failures in International Political Institutions
My organization, the Norwegian Helsinki Committee, has a history of ad-
dressing integrity issues publicly, rather than only raising them discretely
behind the scenes. Maybe it is part of a wider Nordic tradition that to
demonstrate your support for an institution, you do not shy away from pub-
licly criticizing it and appeal for effective measures to address failings.
6
“Conscience and Integrity”, in Gerard B. Wegemer and Stephen W. Smith (eds.), A Thomas
More Sourcebook, Catholic University of America Press, Washington, DC, 2004, pp. 212–
214.
7
Stephen W. Smith, “Thomas More: Patron Saint of Leading Citizens”, in Travis Curtright
(ed.), Thomas More: Why Patron of Statesmen? Lexington books, New York, 2015, p. 145.

Part of this tradition is a perception that for criticism to be effective,

it must be constructive. Only denouncing practices, without pointing to
remedies and good examples that could help improve them, is not enough.
External inquiries into institutional misbehaviour, which is widely used in
the Nordic countries, is expected to produce recommendations on remedies
as well as to clarify and evaluate the facts.
I will point to a few examples of recent integrity issues in interna-
tional organizations. These examples are telling in themselves but also help
to characterize main types of contemporary integrity issues. Such a typolo-
gy, as further developed in Section 4.2., may make it easier to answer ques-
tions about the relevance of More’s approach to developing and preserving
integrity.
4.1.1. Biased Election Observation
During the 1990s, election observation as a distinct form of human rights
monitoring developed rapidly. In post-conflict situations and in societies in
transition from communist dictatorship to democratic rule, Western States,
the United Nations (‘UN’), the Council of Europe, the Conference on Secu-
rity and Co-operation in Europe (‘CSCE’, renamed the ‘OSCE’ on 1 Janu-
ary 1995) 8 and some other international organizations put great emphasis
on promoting free and fair elections as necessary steps towards democratic
rule.
A telling expression of this view is to be found in the landmark 1990
CSCE Copenhagen Document, where all 35 Participating States at the time
declared that “the will of the people, freely and fairly expressed through
periodic and genuine elections, is the basis of the authority and legitimacy
of all government”. 9
The CSCE/OSCE Office of Democratic Institutions and Human
Rights (‘ODIHR’) played an important role – as did several academic insti-
tutions and non-governmental organizations – in developing a methodology
8
Budapest Summit Declaration, Towards a genuine partnership in a new era, 21 December
2004, paragraph 3.
9
Conference on the Security and Co-operation in Europe, Document of the Copenhagen
Meeting of the Conference on the Human Dimension of the CSCE, 29 June 1990, para. 6
(https://www.legal-tools.org/doc/f85146).

to ensure that findings reflected both election day performance of elections

as well as contextual factors. 10
In some of the transitional countries, hopes for democratic develop-
ments were soon to be replaced by the reality of ‘managed’ democracy.
States like the Russian Federation, Belarus, Azerbaijan and the Central
Asian States do perform elections, but they adhere to systems where the
‘elected’ government weakens and/or controls the judiciary, the media, the
parliament, and other State institutions to such an extent that there are little,
if any, checks and balances. Furthermore, no effective opposition in the
parliament exists.
In some of the countries, widespread cheating on election day does
take place. However, the States increasingly adhere to more sophisticated
ways of controlling the election results. 11
Even if these States centralize power and are intolerant of criticism,
they make efforts to retain an institutional set-up that mimics democratic
governance. Among former communist countries, the Russian Federation
has often played the role of pioneering the development of methods of
‘controlling’ and ‘faking’ democracy.
It is precisely because these States do not adhere to principles of sep-
aration of power and rule of law, and do not tolerate free media and inde-
pendent civil society, that arranging elections is of crucial importance to
strengthen legitimacy and present themselves as adhering to democratic
principles.
Sometimes leaders of the States recognize that the governance model
is not democratic in the full sense. President Vladimir Putin refers to ‘man-
aged’ or ‘controlled’ democracy, 12 while Prime Minister Viktor Orbán be-
10
ODIHR, Election Observation Handbook, sixth edition, OSCE/ODIHR, Warsaw, 2010. An
extensive library of election related guidelines and tools are available at the OSCE web page.
11
For a compelling account of the main methods used to ‘control’ democracy, see Andrew
Wilson, Virtual Politics: Faking democracy in the Post-Soviet World, Yale University Press,
2005. He argues that the post-Bolshevik culture of ‘political technology’ is the main obstacle
to better governance in the region. There is no real popular participation in public affairs,
and no systematic modernization of the political economy.
12
This term may be inspired by the concept of ‘guided democracy’, coined by the American
journalist Walter Lippmann in his influential book Public Opinion from 1922. In such a sys-
tem, a formal democratic government function as a de facto autocracy. For an early criticism
of Putin’s managed democracy, see Masha Lipman and Michael McFaul, “Managed democ-
racy in Russia”, in Harvard International Journal of Press/Politics, 2001, vol. 6, no. 3,
pp. 116–127.

came infamous for characterizing the European Union (‘EU’) Member

State Hungary as an ‘illiberal State’. 13 Other leaders resorted to terms like
‘transitional democracy’, indicating that the State might not be fully demo-
cratic yet, but is en route towards that end goal. 14
Faced with increasingly professional independent election observa-
tion, which is able to detect election fraud not only on election day, but also
pre- and post-election day measures that were initiated to produce the de-
sired election results, the regimes set out to tackle this challenge as well.
They organized, inter alia, alternative election observation missions, which
stated that elections were free and fair even if they were not.
A group of parliamentarians from Western countries constituted a
special problem. Being members of respected international election obser-
vation missions, they breached codes of conduct, made positive statements
on Election Day, and tried to influence mission statements to become more
positive than justified. These problems were in particular linked to elec-
tions in Azerbaijan, and the Parliamentary Assembly of the Council of Eu-
rope (‘PACE’) eventually initiated an investigation into alleged corruption
among its members. 15
To respond to biased election observation, a coalition of non-
governmental organizations, the European Platform for Democratic Elec-
tions (‘EPDE’), 16 initiated several studies of threats to the integrity of elec-
tion observation in 2016. 17
13
Prime Minister Orbán proclaimed Hungary as an illiberal democratic State in a speech at the
Tusványos Summer University and Student Camp on 26 July 2014. “Proclamation of the Il-
liberal Hungarian State”, The Orange Files, 1 August 2014 (available on its web site).
14
Freedom House has since 1995 run a project called “Nations in transit”, which according to
a certain methodology survey democratic reforms in 29 former communist countries. The
report covering developments in 2018 registered the most score declines in the project’s 23-
year history: 19 of the 29 countries had declines in their overall Democracy Scores. For the
second year in a row, there were more Consolidated Authoritarian Regimes than Consolidat-
ed Democracies (Freedom House, “Nations in Transit 2018” (available on Freedom House’s
web site)).
15
Council of Europe, Report of the Independent Investigation Body of the allegations of cor-
ruption within the Parliamentary Assembly, 15 April 2018 (available on the Parliamentary
Assembly’s web site). For extensive coverage of the so-called ‘caviar diplomacy’ in PACE,
see European Stability Initiative thematic web site on corruption problems in the PACE.
16
Members of the coalition include Helsinki Citizens’ Assembly Vanadzor, Election Monitor-
ing and Democracy Studies Centre (EMDS), Belarusian Helsinki Committee, International
Society for Fair Elections and Democracy, European Exchange, International Elections
Study Centre, Promo-LEX Association, The Norwegian Helsinki Committee, Stefan Batory

According to the EPDE, the main integrity issues were:

• “a growing tendency among authoritarian regimes in the OSCE re-
gion to orchestrate benevolent election observation in order to give
legitimacy to fraudulent elections”; 18
• “a series of cases where European parliamentarians individually
make public assessments of elections abroad, giving an impression to
represent the position of their parliament also while their activity is
not endorsed by their parliament or their faction, and when they are
not member of any official Election Observation Mission. By that,
they discredit not only the parliament and the faction they represent
but election observation as such”; 19
• “there are European parliaments which did not sufficiently elaborate
effective internal control mechanisms (i.e. Codes of Conduct) to dis-
courage their members from participating in biased international
election observation missions”; 20
• “an increasing number of GONGOs (governmental organized NGOs)
publish assessments on election processes which are not based on
any methodological election observation, while often being purely
politically motivated”; 21
• “election administrations in some countries of the OSCE region de-
liberately deny accreditation to independent international Election
Observation Missions adhering to international standards as the
ODIHR methodology”; 22
• several parliamentary assemblies send election observation missions
that “do not operate on the basis of a transparent and clearly defined
Foundation, Golos, Swedish International Liberal Centre, and Committee of Voters of

Ukraine.
17
EPDE, Politically biased election observation – A threat to the integrity of international
institutions, July 13, 2018 (available on EDPE’s web site).
18
Ibid., p. 8.
19
Ibid.
20
Ibid.
21
Ibid., p. 9.
22
Ibid.

election observation methodology for the assessment of the election

process”. 23
4.1.2. Corruption in the Parliamentary Assembly of the Council of
Europe
An enabling factor for these unfortunate developments was a lack of quali-
ty control mechanisms. There were, inter alia, no established mechanisms
to monitor the conduct of parliamentarians participating in observation
missions of PACE, the OSCE Parliamentary Assembly, or the European
Parliament. Nor were there procedures to establish the basis for reaching
conclusions that significantly differed from those of the long-term profes-
sional missions of the OSCE’s specialized agency for conducting election
observation, ODIHR.
Lack of quality control and transparent procedures may also have
been at the core of the integrity issues connected with the so-called ‘caviar
diplomacy’ in PACE. In short, this diplomacy may have started as early as
in 2001 and consisted in bribing members of PACE with money and gifts
to influence their voting in favour of Azerbaijan and possibly some other
Council of Europe Member States. 24
The conclusion of the external review of the allegations was as fol-
lows:
The key deficiency in the organisation of work and political
processes in PACE was found to relate to the manner in which
the decisions on appointments to different functions were
made. This in particular concerned the lack of transparency
and sufficient regulation of the procedures for such appoint-
ments, especially the appointments of members of the Moni-
toring Committee and the Rules Committee, as well as the ap-
pointments of rapporteurs in general. An issue of lack of
transparency and an absence of safeguards against abuse was
also found to arise with regard to the voting processes in the
committees, which might affect the voting results and open
the door to the possibility of exertion of improper influence,
including that of a financial nature.
23
Ibid.
24
For a short description of the problems, see Organized Crime and Corruption Reporting
Project (‘OCCRP’), “Council of Europe Expels 13 in Azerbaijan Bribe Case”, 3 July 2018
(available on OCCRP’s web site).

As to the functioning of PACE in matters concerning

Azerbaijan, the Investigation Body established that there was
a group of persons working in PACE in favour of Azerbaijan.
A certain level of cohesion in their various activities existed,
although the Investigation Body found it difficult to establish
with a sufficient degree of certainty that they all formed part
of a single orchestrated structure. In this context, the Investi-
gation Body found that, in their activities concerning Azerbai-
jan, several members and former members of PACE had acted
contrary to the PACE ethical standards. 25
The review also found that
the Guidelines on the observation of elections by the Parlia-
mentary Assembly required to be further strengthened and
clarified and that PACE should consider including in the ethi-
cal framework a specific part dedicated to election observation,
in order to ensure that members of PACE participating in that
type of missions complied with those guidelines. 26
The conclusions on corrupt behaviour of former and present mem-
bers of PACE was also fairly clear, namely
that a number of former PACE MPs who had performed …
[lobbying activities on behalf of Azerbaijan] had acted contra-
ry to the PACE Code of Conduct. As to the corruptive activi-
ties in favour of Azerbaijan, the Investigation Body estab-
lished that there was a strong suspicion that certain current
and former members of PACE had engaged in activity of a
corruptive nature. 27
The review was, however, limited in time and resources, and there-
fore also concluded that there was a need for further investigations, inter
alia, to elucidate whether countries other than Azerbaijan had been in-
volved in corruption as well as more detailed questions about the extent
and planned nature of the corruption schemes.
A trial in Milan, which started 10 December 2018, has so far been the
only follow-up to hold anyone criminally responsible for the biggest scan-
dal in the history of the Council of Europe. In this case, three former mem-
bers of PACE were charged with corruption, namely Luca Volonte (Italian
25
Council of Europe, Report of the Independent Investigation Body of the allegations of cor-
ruption within the Parliamentary Assembly, p. x, see above note 15.
26
Ibid., pp. x-xi.
27
Ibid., p. xi.

member, 2008–2013), Elkhan Suleymanov (Azerbaijani member, 2011–

2018), and Muslum Mammadov (Azerbajani member, 2016–2018). 28
The facts of the case were not disputed: in the period 2012–2014 the
two Azerbaijanis transferred large sums of money to the Italian, who as a
leader of the biggest political group in PACE, the European People’s Party,
had considerable influence on voting results in the Assembly.
Among the evidence in the case were e-mail communications be-
tween the three PACE members. One of them, from 1 February 2013, is
especially telling of their relationship. It was written after a vote on a reso-
lution on political prisoners that Azerbaijan’s government wanted to see
defeated and which to the surprise of both members of PACE and external
observers was rejected by a large majority. In the e-mail, Volonte addressed
Mammadov with the following words: “Your wish is my command, so I
think that we should discuss the new version [of a motion] during the next
meeting in Baku with Elkhan [Suleymanov] and Pushkov”, the then power-
ful leader of the Russian delegation to PACE. 29
4.1.3. Integrity Issues in International Police and Judicial
Institutions
In recent years, documentation has been presented on abuse by a range of
authoritarian States of the INTERPOL’s ‘wanted person’ alerts in politi-
cized criminal cases. The background is an extensive increase in the use of
INTERPOL Red Notices and Diffusions, which has heightened the risk of
misuse. For example, the number of Red Notices issued each year in-
creased from 1,418 in 2001 to 13,048 in 2017 and to 13,516 in 2018. There
are currently approximately 58,000 valid Red Notices, of which some
7,000 are public. 30
The high numbers of alerts increase demands on resources for con-
trol. According to its Constitution, INTERPOL’s main goal is “to ensure
and promote the widest possible mutual assistance between all criminal
police authorities within the limits of the laws existing in the different
28
European Stability Initiative (‘ESI’), “Human Rights with Teeth (I) – Battle of Europe”, ESI
Newsletter, 2018, no. 9, p. 2.
29
Ibid.
30
Amy Mackinnon, “The Scourge of the Red Notice: How some countries go after dissidents
and debtors”, Foreign Affairs, 3 December 2018 (available on its web site). See also, David
Satter, “Russia’s abuse of Interpol”, Russia Studies Centre Policy Paper No. 6 (2015), The
Henry Jackson Society, July 2015. The figures were taken from Interpol’s web site.

countries and in the spirit of the ‘Universal Declaration of Human

Rights’”. 31
In other words, a constitutional requirement exists that the mutual as-
sistance provided by INTERPOL and the cases presented by national police
authorities to its platforms should be based on investigative or other activi-
ties that respect international human rights. This is further underlined by
Article 3 of the Constitution, which states that “it is strictly forbidden for
the Organization to undertake any intervention or activities of a political,
military, religious or racial character”. 32
Fair Trials, a UK-based non-governmental organization that works
for fair trials according to international standards of justice, has document-
ed such abuse since 2013. 33 According to the organization, INTERPOL has
started to make reforms to strengthen control, but there are still major prob-
lems with “transparency, missing statistics and a simple lack of re-
sources”. 34 The solution, according to Fair Trials, is not to exclude any of
the 194 Member States of INTERPOL: “We need strong international or-
ganisations to tackle international crime and keep the world safe. We don’t
want countries like Russia and Turkey to become safe havens for criminals
by excluding them from Interpol altogether”. 35
To strengthen the integrity of the organization, there is rather a need
to speed up implementation of its reform programme. The programme is
designed to make it harder to abuse its systems as a vehicle of political re-
pression. The Council of Europe and other international organizations may
31
Constitution of the International Criminal Police Organization-INTERPOL, 1956 (2017),
Article 1 (https://www.legal-tools.org/doc/07a066).
32
Ibid., Article 3
33
Fair Trials International, Strengthening respect for human rights: Strengthening Interpol,
2013 (available on Fair Trials’ web site). The report documented abuse in specific cases and
recommended measures to detect and prevent such abuse. It also referred to resolutions and
statements by international organizations since 2010 about the need to strengthen control
mechanisms within the organization.
34
Fair Trials, “How to end the abuse of INTERPOL: insights from America and Europe”, 18
December 2018 (available on Fair Trials’ web site). On measures to strengthening safe-
guards against abuse, see INTERPOL: “New measures approved to strengthen INTERPOL
information sharing system”, 9 November 2016 (available on its web site).
35
Fair Trials, “How to end the abuse of INTERPOL: insights from America and Europe”, see
above note 34.

play important roles in monitoring how well INTERPOL implements the

programme. 36
Part of the programme is to ‘clean up’ its databases to identify and
delete alerts that were circulated without proper review. INTERPOL may
also restrict certain countries’ access to databases if they believe that they
are repeatedly and systemically violating its rules.
Similar to the ‘caviar diplomacy’ scandal in PACE, at the core of IN-
TERPOL’s problems are actions of Member States that undermine the in-
tegrity of the institution. The problem is then aggravated by the institution’s
lack of proper safeguards and capacity to detect and prevent the misuse of
its systems. 37
In PACE, an additional problem was that several members from
democratic countries by corruptive influence were willing to compromise
the integrity of the organization. There were both an institutional integrity
problem – among others, lack of safeguards which enabled corrupt mem-
bers to change the course of the institution – as well as individual integrity
issues.
As a result, well-intended Member States may not rely on INTER-
POL alerts without conducting thorough investigations into the background
of persons that have been put into the system. Several persons have been
repeatedly arrested or questioned by police based on politicized INTER-
36
PACE, Abusive use of the INTERPOL system: the need for more stringent legal safeguards,
Doc. 14277, 29 March 2017. It should be noted that even if PACE has had serious integrity
issues of its own to deal with, it often played strong and beneficial external roles in promot-
ing and securing adherence to human rights, democracy, and integrity norms.
37
Commission of Security and Co-operation in Europe, “Helsinki Commission leaders intro-
duce translational repression accountability and prevention (TRAP) act”, 12 September
2019 (available on its web site). Recognizing the extent of the problem, the leaders of the
US Helsinki Commission on 12 September 2019 introduced the Transnational Repression
Accountability and Prevention (TRAP) Act in the House of Representatives. The Act de-
clares that it is the policy of the United States to pursue specific reforms within INTERPOL
and use its diplomatic clout internationally to protect the rights of victims and denounce
abusers. The bill requires the Departments of Justice, Homeland Security, and State, in con-
sultation with other relevant agencies, to provide Congress with an assessment of autocratic
abuse of INTERPOL, what the United States is doing to counteract it, and how to adapt
United States policy to this evolving autocratic practice. The State Department would also
be required to publicly report on the abuse of INTERPOL in its annual Country Reports on
Human Rights to create a transparent, public record of these violations of the rule of law.

POL alerts. The result is often that their freedom of movement becomes
severely restricted. 38
In an exposé of recent international integrity failures, acquittals in
2012–2013 by the Appeals Chamber of the International Criminal Tribunal
for the former Yugoslavia (‘ICTY’), and media revelations about a deep
split among its judges should also be mentioned. The acquitted included
high-ranking Croat and Serb officials, such as Ante Gotovina, Mladen
Markač, Momčilo Perišić, Jovica Stanišić and Franko Simatović, and gen-
erated concerns about the quality of the legacy of the ICTY. Much of the
criticism focused on the role of the then ICTY President Theodor Meron,
thus challenging his impartiality and alleging that he sought to unduly in-
fluence other Tribunal judges. According to diplomatic cables released by
WikiLeaks, he was close to the US government, being characterized by US
diplomatic personnel as a pre-eminent supporter of specific government
interests. The criticism extended to the International Criminal Tribunal for
Rwanda (‘ICTR’) which shared its Appeals Chamber with the ICTY. 39 The
acquittals did not come as a result of new evidence, but rather as a conse-
quence of changes in judicial interpretation at a late stage in the life of the
ICTY affecting the ability of the Tribunal to hold leaders accountable.
Combined with revelations of an apparent power struggle between the then
American Tribunal President and the Danish judge Frederik Harhoff, lead-
ing to the exclusion of the latter, this not only revealed serious disunity
among the judges, but at the time reduced trust in the Tribunal in ways that
disoriented victims, their families, and the wider struggle against impunity.
According to Judge Harhoff, his main concern was undue influence by “the
38
A telling example is former hedge fund investor in Russia, William Browder, who since
2009 has led an international human rights campaign, ‘Justice for Sergei Magnitsky’. He has
been placed on Interpol’s red alert list seven times by Russia, which wants him extradited
for alleged tax evasion. See Reuters, “Russia asks Interpol to arrest Kremlin critic Bill
Browder: letter”, 9 April 2018 (available on Reuters’ web site). For Browder’s best-selling
auto-biographical book see William Browder, Red Notice: How I became Putin’s No. 1 En-
emy, Transworld Publishers Ltd., London, 2015.
39
Gunnar M. Ekeløve-Slydal, “ICTY Shifts Have Made Its Credibility Quake”, FICHL Policy
Brief Series 49 (2016), Torkel Opsahl Academic EPublisher, Brussels, 2016 (http://
www.legal-tools.org/doc/18ba48/) See also Julija Bogoeva, “International Judges and Gov-
ernment Interests: The Case of President Meron”, FICHL Policy Brief Series 48 (2016),
Torkel Opsahl Academic EPublisher, Brussels, 2016 (http://www.legal-tools.org/doc/
56a576/); and Frederik Harhoff, “Mystery Lane: A Note on Independence and Impartiality in
International Criminal Trials”, FICHL Policy Brief Series 47 (2016), Torkel Opsahl Aca-
demic EPublisher, Brussels, 2016 (http://www.legal-tools.org/doc/c2e5ad/).

military establishments in countries involved in armed conflicts in other

parts of the world, such as the United States and Israel – and […] Russia,
France, the UK and others”. 40
My own conclusion at the time was that there existed a
persistent reason to doubt the impartiality of President Meron.
Regrettably, this doubt has a cancerous staying power. We are
so-called ‘informed observers’, a part of the community of ac-
tors that has helped make and protect the ICTY for more than
20 years. If such ‘informed observers’ perceive bias on the
part of an ICTY Judge and MICT President, and have the
courage to say so publicly, that has immediate relevancy under
the ICTY’s law. Losing trust among the informed part of the
public is detrimental for a judge of an institution whose au-
thority depends on being – and being perceived as – impar-
tial. 41
My final example is the media revelations in 2017 about possible
misconduct by members of the ICC Office of the Prosecutor and the first
ICC Prosecutor, Luis Moreno-Ocampo. Even if there have been serious
integrity issues in other international institutions – as shown by the far
from exhaustive exposé presented above – there was something particularly
disturbing about these revelations. A former high official of the ICC, its
first Prosecutor, who had been elected based on legal requirements of “high
moral character” in addition to professional skills (being “highly competent
in and […] [having] extensive practical experience in the prosecution or
trial of criminal cases”), 42 had allegedly been making money by assisting a
potential suspect in the Libya situation under ICC investigation.
It is not infrequent that prosecutors become private lawyers or legal
advisors after their tenure (and after a regulated quarantine period ends),
but one part of the revelations was far from acceptable: the first prosecutor
relied on ICC staff members sharing information with him.
In addition, there were a range of broader issues resulting from a cul-
ture institutionalized by the first Prosecutor which weakened quality con-
trol, removed open internal discussions, and resulted in a “sense of fear”
40
Harhoff, 2016, p. 2, see above note 39.
41
Ekeløve-Slydal, “ICTY Shifts Have Made Its Credibility Quake”, p. 4, see above note 39.
42
Rome Statute of the International Criminal Court, 17 July 1997, Article 42(3) (‘ICC statute’]
(https://www.legal-tools.org/doc/7b9af9/).

and “intimidation” among staff members. 43 Within a few years, 22 top staff
members had left his office. These internal problems were known by sever-
al government officials and leaders of non-governmental organizations
since late 2003. 44
A further aggravating fact was that the ICC’s achievements in terms
of convictions of major war criminals have been very disappointing. There
have been only three convictions so far. Cases against 12 persons have col-
lapsed. 45
Two other factors were also at play. When created, the ICC received
widespread support from large parts of the international community, even
though some influential States showed reservation and sometimes acted in
a hostile manner to the institution. 46 For the human rights community, the
adoption of the Rome Statute and its rapid ratification by the required
number of States created widespread optimism that the ICC would help
create an effective system to fight impunity for core international crimes. In
general, institutions do create expectations and provide implicit promises.
The establishment of the ICC had created high expectations, some of them
perhaps unrealistic.
The second factor is linked to the concept of ‘professional integrity’.
As a physician is not evaluated only based on his or her personal integrity –
being a morally solid and consistent person – but as a person who honours
profession-specific requirements, the same goes for prosecutors in interna-
tional justice. During his time as ICC Prosecutor, Moreno-Ocampo was
often hailed in popular culture as a hero in the fight against unspeakable
crimes and criminal leaders. His fall due to his failure to uphold profes-
43
Morten Bergsmo, “Institutional History, Behaviour and Development”, in Bergsmo, Rack-
witz and SONG (eds.), 2017, p. 24, see above note 2.
44
demic EPublisher, Brussels, 2017, page 2 (http://www.legal-tools.org/doc/41b41a/)
45
Morten Bergsmo, «La CPI, l’affaire Gbagbo et le rôle de la France», Le Monde, 18 January
2019 (http://www.legal-tools.org/doc/d499f6 and https://www.legal-tools.org/en/doc/693bee
(English version)).
46
For an overview and evaluation of US relations with the ICC since 2002, see William Pace:
“The Hague Invasion Act remains dangerous”, Diplomat Magazine, February 9, 2019
(available on Diplomat Magazine’s web site).

sional and integrity requirements consequently created great disappoint-

ment, along with the collapse of the cases he had initiated. 47
In a letter to Fatou Bensouda, the ICC Prosecutor since 2012, the
Norwegian Helsinki Committee raised these issues and asked her to use her
“full authority over the management and administration of the Office” to
conduct credible and transparent reviews of the legacy of the first Prosecu-
tor in order to establish relevant facts of professional and ethical miscon-
duct”. 48
In her 22 May 2018 reply, Bensouda concluded that
my staff and I have made every effort to learn from past expe-
rience, improve the culture of the Office of the Prosecutor to
encourage openness and critical thinking, and transform our
working methods to achieve success. We have endeavoured to
be transparent. We uphold ethical standards of the highest or-
der. Should credible allegations of misconduct arise, they are
dealt with appropriately and according to a fair process. As
such, I am of the respectful view that the sort of broad inquiry
you call for is unnecessary considering the steps the Office it-
self has taken, what we are already accomplishing and have
put in place. 49
In her letter, Bensouda failed to address the most serious allegations
referred to in our letter, which implicated the first Prosecutor as well as his
Chef de cabinet at the time. There were, however, indications in her letter
that could be interpreted in the direction that “further measures” could be
taken that included “fact-finding concerning the first Prosecutor and former
staff members”. 50
47
For portraits of Mr. Ocampo that build the hero-narrative, see for instance the films: Edet
Belzberg, Kerry Propper, Amelia Green-Dove and Taylor Krauss (Producers) and Edet
Belzberg (Director), “Watchers of the sky”, motion picture, 2014, United States, Propeller
Films; and Paco de Onis (Producer) and Pamela Yates (Director), “The reckoning: the battle
for the International Criminal Court”, motion picture, 2009, United States, Skylight Pictures.
48
Norwegian Helsinki Committee, “Letter to Mrs. Fatou Bensouda, Prosecutor of the ICC”, 12
March 2018 (http://www.legal-tools.org/doc/b745e4/).
49
Fatou Bensouda, “Letter to Messr Engesland and Ekelove-Slydal”, 22 May 2018 (available
on the Norwegian Helsinki Committee’s web site).
50
Norwegian Helsinki Committee, “Letter to Mrs. Fatou Bensouda, Prosecutor of the ICC”, 8
June 2018 (available on the Norwegian Helsinki Committee’s web site). Also Women’s Ini-
tiatives for Gender Justice argued for “external review of the practices relevant to the allega-
tions”, see Women’s Initiatives for Gender Justice, “A critical time for the ICC’s credibility”,
18 November 2017 (http://www.legal-tools.org/doc/e2fbc7). The ICC Bar Association (‘IC-

4.2. Typology of Integrity Issues

There may exist several motives for criticizing integrity failures of institu-
tions and high officials. Most of them fall into two categories: either one
wants to undermine the credibility of the institutions or the officials, or one
wants to improve, modify and eventually strengthen them. While critics
falling into the first category may wish for the institution to become irrele-
vant or closed down, those falling into the second category may wish for
the opposite. Their vision is a renewed and strengthened institution that
plays a stronger beneficial role in its mandated field.
A third category may include critics with motives that are less defi-
nite, simply wanting to place failures and problems into the open to initiate
debates that may lead in different directions.
To act on any of these motives may, due to circumstances, be quite
risky. Consequences of public criticism and debates are difficult to predict.
It might be next to impossible to carry out the utilitarian test with any de-
gree of certainty, that is, to answer the question whether consequences of a
critical engagement will be more beneficial than harmful for the overall
goal of advancing the mandate of the institution in question. Is the criticism
doing more good than harm?
Such questions were not alien to Thomas More. Regardless of views
on whether he was right in his conflict with the King and the legal estab-
lishment of his time, it cannot be denied that he was exceptionally skilful in
the way he navigated impossible waters. He was in no way seeking martyr-
dom, but he held steadfastly to viewpoints and strategies he though would
lead to the best results.
In his writings, he publicly criticized the Kings that ruled in England
and other European States. Sometimes he did so in very direct ways, using
strong language to depict the wretchedness of the character of the person he
denounced.
At the same time, he eventually decided to serve at high positions in
the developing State bureaucracy of England under King Henry VIII
(1491–1547). His intention was never to undermine the authority of the
King and to instigate a revolt against him. On the contrary, he wanted to
CBA’), urged in a statement, “States Parties and the ASP to initiate a thorough, effective and
independent investigation into the serious allegations raised in these recent public reports”,
see ICCBA, “ICCBA Statement on Allegations Against Former ICC Prosecutor”, 29 No-
vember 2017 (http://www.legal-tools.org/doc/a8cdcb).

improve and thereby strengthen the legitimacy of his rule. Overall, it seems
that his main goal was to promote peace and improve the lot of ordinary
people.
One of his best-known books, The History of King Richard the Third,
is a sharply formulated Christian humanist attack on tyrannical rule and a
King that personalized excesses connected with ruthless power-struggle
and disregard for the well-being of his people. 51
More’s world-famous Utopia (1516) criticizes the state of European
politics and exemplifies how politics governed by reason may function by
way of describing the state of affairs at a fictive island State. 52 Interestingly,
it also includes discussions on whether a wise person should separate him-
self from politics, or rather serve leaders who are less than ideal and at least
contribute to moderating their evils and mistakes.
According to More, a good leader has a duty to “take more care of
his people’s welfare than of his own, just as it is the duty of a shepherd who
cares about his job to feed the sheep rather than himself”. 53 If a King de-
parts from his duty, his servant should do what he or she could to minimize
the negative consequences of such departure.
More presented strong arguments against the execution of or other
harsh penalties imposed on thieves. He was behind legal reforms that
would ease access of the poor to justice. Stealing was the only way of sur-
viving for many poor people. Executing them would not contribute to solv-
ing any problems, More argued. Part of his progressive agenda was also
arguments that leaders should accept free speech, and that Parliament
should have a decisive say on legislation.
Even if realities were far from these ideals, More decided eventually
to serve for many years under one of the Kings he had both hailed and crit-
icized, Henry VIII. First serving in high legal positions in the city of Lon-
51
More probably started to write the book in 1513 and did never finish it. He wrote two ver-
sions simultaneously, one in English and one in Latin for a wider European audience. It was
published only after More’s death, in 1557. A modernised and easy to read version of the
book has been made available online by The Centre for Thomas More studies: Thomas More,
The History of King Richard the Third, Mary Gottschalk (ed.), 2012 [c. 1513]. This version
is based on the 1557-edition that inspired William Shakespeare (1564-1616) to write his
play ‘Richard III’. Whether More’s negative account of King Richard was wholly justified,
is another question, which I do not intend to discuss here.
52
More, Utopia, see above note 3
53
Ibid., p. 33

don, he had accepted prominent positions offered by the King from 1518.
He was Chancellor of England from 1529 to 1532.
When entering the King’s Council in 1518, More was well aware of
the conflicting demands such service would entail. What he did not know,
of course, was that Henry VIII would develop into a tyrant, killing wives,
high officials that had served him, among many others. He could not fore-
see that he himself would eventually be killed by the King because of a
conflict about fundamental principles concerning the relationship between
State and church. In 1535, More was beheaded after a show trial, on the
order of the King, for refusing to accept Henry VIII as head of the Church
of England. His vision was an internationally unified and independent
church.
More has been recognized as a saint by the Roman Catholic Church
(1935). Even more important in the context of integrity discussions, he has
been proclaimed as a Patron Saint of Statesmen (2000). 54 His example of
integrity is not only recognized by the Catholic Church, but by people be-
longing to different religions and beliefs.
His example remains to a certain degree controversial. The critics
claim that he was a fanatic responsible for the execution of heretics during
his tenure. It is undisputed that he was responsible for such executions, and
it is therefore mandatory in discussions about his enduring legacy to identi-
fy exactly what to keep and what to disregard from his thought and practice.
Before discussing further More’s relevancy for current integrity discussions,
though, I will return to the above examples of such issues within interna-
tional institutions, providing a categorization of the problems.
4.2.1. Politicization or Instrumentalization of Institutions
The examples include issues related to integrity both on institutional as
well as individual levels. There were issues related to both current and
former officials within the institutions, which enjoyed certain ‘privileges’
which they reportedly abused (that is, former members of PACE lobbying
for Azerbaijan and the first Prosecutor of the ICC).
By institutional integrity, I mean upholding institutional activities
and views in line with reasonable interpretations of the institution’s man-
54
Pope John Paul II, Apostolic Letter Issued Moto Proprio, Proclaiming Saint Thomas More
Patron of Statesmen and Politicians, 31 October 2000 (available on The Holy See’s web
site).

date. The mandate of the Council of Europe, for instance, is to promote and
protect human rights, democracy and the rule of law in its Member
States. 55 Mandates of institutions of international justice are typically to
“exercise […] jurisdiction over persons for the most serious crimes of in-
ternational concern”. 56 The institutions may have different rules concerning
that jurisdiction, but the core purpose remains the same: to hold persons (at
high places) accountable for international crimes they conducted, were re-
sponsible for, or failed to prevent.
If institutions fail to fulfil their mandates in specific cases or situa-
tions because of corruption, giving in to political pressure, or neglect, these
may amount to instances of institutional integrity failures. In international
justice institutions, the ICTY’s 2012–2013 acquittals may be a case at hand.
The point here is that failures to uphold integrity at a personal level may
translate into institutional failure.
Justice institutions are particularly vulnerable to such failure, since
the number of people taking binding decisions is limited. The example of
PACE’s failure to adopt a resolution on political prisoners in Azerbaijan
mentioned above indicate that also in bodies where decision-making in-
cludes hundreds of persons (PACE has 324 members), this risk is still pre-
sent.
4.2.1.1. Establishing Fake Institutions
As we have seen, one way of undermining genuine international institu-
tions is to establish alternative institutions with a similar mandate, but
which applies the mandate in a politicized or biased way.
The purpose may be to undermine the views of genuine institutions
in front of the international community or at domestic levels. By presenting
alternative views as if they were based on systematic and methodologically
sound research, the institutions serve to disorient public opinion and un-
dermine trust in genuine institutions.
The primary example given above was biased election observation.
There might, however, also be discussions about whether specific justice
institutions should be placed in this category. It is hardly controversial to
place highly politicized courts and prosecutorial services in authoritarian
55
Statute of the Council of Europe, 5 May 1949. For an updated presentation of the organiza-
tion’s aim and prioritized areas of activity, see the Council of Europe’s official web site.
56
ICC Statute, Article 1, see above note 42.

States in this category. Such institutions ‘mimic’ independent courts and

prosecutorial services, but in reality, they often function as tools of the
highest political authorities or other powerful circles to further their inter-
ests. 57
More controversial – and in my view misleading – would be to place
internationalized or international jurisdictions in this category, due to
claims that they were one-sided, applied double standards, or professed
other mandate restrictions preventing them from applying a strict criteria-
based approach to case selection.
The main challenges to their legitimacy centred around the way they
were created or their assertion of jurisdiction over heads of States. 58 Anoth-
er important issue is related to the application of double standards. Double
standards in international criminal law raises important and difficult ques-
tions about the legitimacy and credibility of the project of ensuring ac-
countability for core international crimes since there is not yet equality be-
fore the law. However, this is a different problem from justice institutions
that are created to ‘mimic’ justice, while serving only or mainly political
purposes, and which are continuously unduly influenced. 59
As the ICTY example shows, there reportedly were instances of un-
due political influence on high officials of international justice institutions,
but not of such a systematic and massive scale as to question the genuine
character of the institutions as such.
In my view, the main remedy against the fake institution threat to in-
tegrity is principled and fact-based criticism exposing the failure of the in-
stitutions to uphold agreed standards and professional implementation of
their mandate.
57
See among others, Maria Popova, Politicized Justice in Emerging Democracies: A Study of
Courts in Russia and Ukraine, Cambridge University Press, 2012. In particular, chapter 6
gives an instructive overview of how the integrity of the courts are jeopardized by so-called
informal practices of influence, such as ‘ex parte communication’ between judges and liti-
gants and ‘telephone justice’ between politicians (or other important players) and judges.
58
For examples of how high-profile defendants have challenged the legitimacy of the interna-
tional(ized) courts they were brought for, see Michael A. Newton, “The Iraqi High Criminal
Court: controversy and contributions”, in International Review of the Red Cross, 2006, vol.
88, no. 862, p. 405.
59
For a description and discussion of the problem of double standards in international justice,
see Wolfgang Kaleck, Double Standards: International Criminal Law and the West, Torkel
Opsahl Academic EPublisher, Brussels, 2015.

4.2.1.2. Undermining Integrity of Genuine Institutions

Concepts of personal integrity mainly fall into two categories: those that
underline “formal relations one has to oneself, or between parts or aspects
of one’s self” and those that see integrity as an “important way to acting
morally, in other words, [that] there are some substantive or normative con-
straints on what it is to act with integrity”. 60
In the first category fall conceptions of persons with “a harmonious,
intact whole”; 61 persons that are able to keep “the self intact and uncorrupt-
ed”. 62 Other important characteristics are wholeheartedness and being
steadfastly true to one’s commitments, especially commitments that are
most important for the person’s self-respect.
A step further, inspired by existentialist and Kantian thoughts on cat-
egorical imperatives, is a view that underlines integrity as ‘self-
constitution’. The point here is that in addition to coherence, there is an act
of rational endorsement of the principles by which a person decides his or
her projects. The way to make yourself into a particular person, who can
interact well with yourself and others, “is to be consistent and unified and
whole – to have integrity”. 63
The second category includes views that point to integrity as a social
virtue, which is defined by a person’s relations with others. Persons with
integrity stand for something, but not in the same way as fanatics do be-
cause they respect the deliberations of others. This might be one of the
more difficult questions related to integrity: what does it mean to respect
other’s views, when you in the end are willing to sacrifice even your life, as
was the case with More, to stand by your own view?
More, like Socrates (c. 470–399 BC) and several other exemplary
figures of integrity, stood by their judgment in the face of enormous pres-
sure to recant. There is a strong argument that it is exactly from such ex-
amples we may detect the essence of integrity. These are persons who hold
to their views despite pressure, efforts to help them escape, efforts to bribe
them, or blaming them for letting down their family, friends and social ob-
ligations because of their perceived stubbornness.
60
Stanford Encyclopedia of Philosophy, “Integrity”, 9 April 2001 (available on its web site).
61
Ibid.
62
Ibid.
63
Ibid.

In the case of More, it is clear that he thought the judges in the trial
against him to be both morally and legally wrong in convicting him to
death for treason. He had remained silent about his views, and the law pro-
tected silence in a case like his. At the same time, he did not denounce his
judges, some of whom were his long-term friends. One way of interpreting
this seemingly paradoxical situation might be to conclude that as he
thought the judges to be wrong, he still respected their right to be wrong in
the way they were. He knew, and the judges knew, that to oppose the will
of the King equalled endangering your life. 64
More fought for the unity and integrity of the Catholic Church.
While England’s bishops (except Bishop John Fisher (1469–1535)), uni-
versities and other institutions had given in to the demands of the King to
be the head of the Church of England, he would not. He fought for some-
thing he believed in very deeply. To give in would be to betray his own
convictions, but also to fail in upholding the integrity of a unified church
and the future of Christendom.
He fought both to uphold his own integrity and the integrity of an in-
stitution he deemed to be of unique importance to upholding the material
and spiritual existence of human beings. Dividing the church and placing it
under the leadership of Kings would weaken it, lead to violent conflict, and
eventually undermining the standing of the Christian States, which at his
time was under considerable pressure from the Ottoman Empire as well as
from internal conflicts in the Christian world. 65
The examples presented above primarily illustrated weakening of the
integrity of genuine institutions. While INTERPOL’s problem was the lack
of sufficient institutional safeguards to detect and prevent politicized alerts
from its Member States, the other examples showed how institutional in-
tegrity was undermined by individual actors within the institutions or by
external actors with a privileged access to the institutions. The methods
were among others bribing, exertion of pressure, and abuse of personal
relationships.
64
See Gerard B. Wegemer, “The Trial of Thomas More: July 1, 1535”, in Portrait of Courage,
Scepter, Cleveland, 1995, pp. 210–217.
65
For a vivid description of the challenging times of More for Britain and, in particular, for
Europe, see Robert Tombs, The English and Their History, Penguin Books, London, 2015,
pp. 157–160.

Corruption of high officials may be both internally and externally di-

rected. It may be facilitated by clearly illegitimate methods, but there is
also a vast area of less clear but still integrity-sensitive ways of changing
institutional policies or even outcomes of trials in justice institutions. Such
methods may include forceful argumentation towards persons in lower po-
sitions, reference to perceived interests of important allies of the institution,
or gradual undermining of a culture of quality control.
The examples illustrate the close nexus between professionalism and
integrity: if you are weak on the practice of your profession, you may be
easy prey for someone who wants to instrumentalize your professional role
in ways that weakens institutional integrity.
To counter the threats to institutional integrity, the main methods are
institutional safeguards, transparency in appointments and elections of high
officials, adherence to codes of conduct, and proper oversight mechanisms.
But even an institution that is well set up and protected against corrupt
practices may fail.
A culture of individual adherence to norms of professional integrity
is vital. In particular, leaders of institutions play an important role in this
regard. They may set examples and nourish cultures of integrity. Or they
may fail to do so with detrimental consequences for the institution. 66
In my view, More is especially relevant in this regard. His foremost
contribution may be his insight into the importance of leaders exemplifying
and talking convincingly about integrity.
4.2.2. Professional Integrity
Each profession creates its own framework of integrity. The reason we trust
our health to physicians we do not personally know, is that they represent
competence and a wider practice that we confide with. The same goes for
justice professionals. We respect and adhere to court decisions because we
confide with the wider practice of courts and the professional competence
and integrity of the key actors taking decisions.
66
For a powerful account of the important role of leaders adhering to democratic norms and
functioning as gatekeepers to uphold democratic rule, see Steven Levitsky and Daniel
Ziblatt, How Democracies Die, Broadway Books, New York, 2018. While their analysis
mainly deals with the question of how to uphold democratic political institutions, their in-
sistence on the important role of leaders or gatekeepers is also highly relevant for discus-
sions on how to uphold and strengthen integrity of justice institutions.

There are several reasons to conceptualize professional integrity as a

distinct virtue, and not as ‘ordinary’ integrity placed in a specialized con-
text. Firstly, any profession has specific ends, such as health for medical
personnel and justice for prosecutors, defence lawyers, and judges. Loyalty
to such profession-specific ends may be perceived as an integrity factor sui
generis. It is precisely because we expect this form of integrity that we en-
trust important aspects of our lives to professionals. 67
Secondly, we expect role holders within specialized institutions to
put professional standards above self-interest. When issues of corruption or
conflict of interests are brought up, professional integrity is seen as the vir-
tue of honouring norms of the profession more than any personal interest. A
judge that gives in to political pressure or accepts bribes to decide in favour
of one of the parties is not living up to the assurances or promises of her or
his profession.
Professionals should not be like people who constantly question their
own decisions or backslide in the face of social pressure. Professionals
trust their own convictions. They may change their views, but only in light
of compelling reasons.
Upholding professional standards may at times be hard, not because
of pressures or temptations, but because issues are hard to solve. Such hard
cases demand a certain degree of interpretive skills, deliberative capacity
and competence and ability to balance different views and concerns. In the-
se situations, professional competence is not only about finding a solution
but to be able to demonstrate why this is the preferred solution in terms of
professional standards and practice.
In this view, professional integrity is characterized by a mode of rea-
soning that calls for the role holder to engage critically and creatively with
the varied and sometimes conflicting demands of practice. The ‘fundamen-
tal normative relation’ that governs the situation is a promissory relation:
the profession has given its word to the public, and role holders are given
the task of keeping the promises. In keeping the promises, they must both
honour professional standards and have a wider understanding of the prac-
tice they fulfil. 68
67
Andreas Eriksen, “What is Professional Integrity?”, in Nordic Journal of Applied Ethics,
2015, vol. 9, no. 2, pp. 3–17.
68
Ibid., p. 10. Eriksen uses Ronald Dworkin’s figure of a “chain novelist” to illustrate this
interpretive view of professional integrity. The task of judges is like the task of authors en-

In important aspects, this view balances the responsibility of the role

holder with the practice of the profession. The judge remains responsible
because he or she has to interpret with a view to deciding the case accord-
ing to his or her best reading of practice. The responsibility is nevertheless
shared with the practice of the profession, which is regarded as a justifiable
social institution.
Ordinary or personal integrity is about consistency in upholding
moral values one has chosen to be guided by – in words and deeds. Profes-
sionals, in addition, have to honour the standards and practice of their pro-
fession. But not in a careless and automatic way. They have to give their
own contribution by interpreting previous practice and decide on new cases
based on the best reading of that practice. Sometimes they have to depart
from previous judgments, but only if they can base that departure on a jus-
tifiable reading of previous practice.
4.2.2.1. Disregard of Professional Norms and Interpretive
Requirements
Seen from this view on integrity it appears that many current integrity is-
sues stem from the failure of leaders of the institutions to uphold their own
professional integrity, to uphold a culture of integrity within the institution,
as well as weak oversight mechanisms. They fail to honour the inherent
promises, the standards and practices of their profession.
Pedro Agramunt, a Spanish conservative politician, resigned as Pres-
ident of PACE after conducting a visit to Syria’s president Bashar al-Assad
in March 2017, together with Russian Duma members. Although he under-
lined that he undertook the visit only in his capacity as Spanish Senator, the
Bureau of PACE stated that he was no longer “authorized to undertake any
official visits, attend meetings, or make public statements on behalf of the
Assembly in his capacity as president”. 69 His resignation, however, had a
gaged in a “chain novel”. This novel is written one chapter at a time. Each finished chapter
is passed along to a new author, who writes the next one. The task of each author is to make
this the best novel it can be. According to Dworkin, the good judge views earlier decisions
“as part of a long story he must interpret and then continue, according to his own judgment
of how to make the developing story as good as it can be”.
69
Rikard Jozwiak, “PACE President Stripped of Powers After Meeting Syria’s Assad”, on
Radio Free Europe, 28 April 2017 (available on Radio Free Europe’s web site). A Motion
for dismissal was tabled by Ingjerd Schou, a Norwegian member of the PACE, on 30 June
2017, see PACE, Dismissal of Mr Pedro Agramunt, President of the Parliamentary Assem-
bly, Doc. 4383, 30 June 2017. The Motion reads: “We, the undersigned, consider that the

wider context. Already as PACE Rapporteur on political prisoners in Azer-

baijan, he became controversial by human rights groups for not reporting
accurately on the problems in the country. This criticism continued and was
strengthened during his tenure as PACE President, 2016–2017. Several
others of the members that were involved in the so-called ‘caviar diploma-
cy’, also had leading roles. Luka Volonté was heading the European Peo-
ple’s Party in PACE.
Members of the ICC Office of the Prosecutor continued to stay in
close contact with the first Prosecutor, reportedly based on personal rela-
tionships. In the example of ICTY given above, the situation was complex:
the ICTY President may have felt pressure from military establishments to
change judicial interpretation. He then himself may have exerted undue
pressure on some of his colleagues.
From these examples, four main categories of breaches with profes-
sional integrity may be detected:
1. Integrity failures may result from giving in to external political or
undue internal collegial pressure. The colleague exerting undue
pressure often has a superior role, but this may not necessarily be the
case.
a. A subcategory, not exemplified above, is the famous Soviet and
Russian use of ‘Kompromat’ or ‘compromising material’ to
blackmail for instance judges to receive certain outcomes of
criminal or other cases before a court. In these cases, the pres-
sure was based on exerting fear of a ruined career or reputation.
b. The position of power necessary for exerting effective pressure
to undermine the integrity of professionals may vary, from being
able to obstruct promotions, making sure the person loses her or
his job, or more serious consequences, as the one faced by
Thomas More: risking losing his life.
c. The position of power may also be of such a nature that not only
the fate of the professional but the survival of the institution she
or he serves is at stake. In such situations, professionals may feel
President of the Parliamentary Assembly no longer enjoys the confidence of the Assembly,
on the grounds that his behaviour seriously harms the reputation of the Parliamentary As-
sembly and tarnishes its image”. Agramunt, however, resigned on 6 October 2017 before the
Motion was scheduled to be decided on, see PACE, “Pedro Agramunt resigns as PACE Pres-
ident”, 6 October 2017 (available on PACE’s web site).

obliged to give in to undue pressure to save the institution while

losing out on integrity.
2. Giving up integrity may result from giving in to material temptations,
such as bribes, luxury travels, or other forms of material gains, such
as reportedly was the case in the PACE ‘caviar diplomacy’ scandal.
Bribery can come from both colleagues and from external actors. The
effect of the bribes may be augmented by the development of a per-
sonal relationship, which places the person who bribes and the per-
son who receives bribes in a relationship of mutual loyalty.
3. A third category comprises personal relationships as such. This fac-
tor may often remain neglected in dealing with integrity issues.
However, in any institution personal bounds may play an important
role in weakening scrutiny of decisions and decision-making pro-
cesses. An important part of creating a culture of integrity is to up-
hold norms of quality control, professionalism and internal oversight
not only in situations of difficult personal relations between staff
members but also in situations of strong reciprocal sympathies. Such
sympathies may weaken the willingness to challenge decisions that
violate professional integrity.
4. A fourth category comprises of lack of professional and moral con-
victions. Stories of professionals who give in to pressure or material
temptations may not only be diagnosed as lack of will-power, but al-
so as lack of basic identification with the profession’s ends and
means. Such identification may develop over time from education
and experiences in the profession, but it may also be weakened by
cynicism and pessimism about the achievements of the profession
and institutions. The idealism of the newly educated staff member
may over time be taken over by cynicism and lack of identification
with the practice of the profession.
4.2.2.2. Failure by External Actors to Hold Institutions to Account
Finally, the role of external actors should be mentioned. There are several
differences in the accounts of integrity issues in PACE and in the ICC giv-
en above. One of the most striking is that the call for external review was
successful in the case of PACE, while the Prosecutor of the ICC did not
initiate such review. One of the likely explanations for this may be the lack
of consistent public pressure on the ICC from ‘informed observers’ and
watchdogs to do so.

In the case of PACE, a large number of non-governmental organiza-

tions, think-tanks as well as members of PACE were alerted of the situation
and strongly requested such review.
Justice institutions are obviously different from political bodies in
several aspects. There are fewer persons involved in decision-making and
for external supportive actors, the concern of upholding and respecting the
independence of prosecutors and judges may lead to more muted criticism
than warranted by the seriousness of their failures.
The important role of external guardians of integrity for justice insti-
tution should not be understated. Independent media, professionalized civil
society organizations, academics and other informed observers are vital
parts of a necessary structure to uphold institutional integrity. Without such
a structure, consistently challenging the institution on professional and in-
tegrity issues, it becomes increasingly vulnerable to under-performing.
4.2.3. The Role of Exemplary Stories and Personalities
As described above, international institutions face a range of integrity chal-
lenges. These are the basis for the questions we ask More for guidance on
in the following.
There are questions related to ‘professionalism’, in particular for le-
gal personnel, who are tasked to take decisions based on legal rather than
on purely political grounds. There is an inherent requirement not to adhere
to ‘horse-trading’ to get support from important States or other powerful
actors.
There are questions related to upholding institutional consistency and
being in line with the mandate and aim of the institution. ‘Independence’,
‘incorruptness’ and ‘not giving in to political pressure’ are among the key
words in this context, as well as ‘professional competence’.
Given the difficult political environment of international justice, ‘in-
tegrity’ may play a crucial role in upholding the authority of an institution.
Arguably, a culture of professional integrity is decisive to ensure that inter-
national justice institutions live up to expectations, create public trust, and
withstand unfounded criticism.
There are large integrity deficits in justice institutions at the national
level in many States, and international jurisdictions are therefore needed as

integrity models. 70 The complementarity principle of the ICC Statute im-

plies that the ICC may prosecute only when national jurisdictions fail to
uphold justice, including because of integrity deficits. That puts an addi-
tional pressure on the ICC to be exemplary on integrity.
Studying personalities and stories of the past to get guidance on cur-
rent integrity issues obviously carries a risk of misrepresenting them to ex-
tract relevant messages. Nevertheless, integrity issues being inherent in
personal and professional relationships of all times, there are remarkable
similarities between the contemporary issues and the issues inherent in the
writings and life of More and other heroes of integrity of the past.
In the story about More’s conflict with King Henry VIII, and central
to his thinking on political issues, all four challenges to upholding integrity
as described above are to be found. He reflected on and exemplified how to
withstand strong pressure from both the political leadership of his time,
headed by King Henry VIII and his chief minister, Thomas Cromwell
(1480–1540), his colleagues, many of whom had been his personal friends
for a long time, and even his own family.
During his service both for the city of London and for King Henry
VIII he was well known for his uncorrupted and efficient dealing with pub-
lic affairs under his responsibility. Based on Christian beliefs, he seemed to
endorse a simple lifestyle, although he ran a big family estate with frequent
guests, and sometimes provided meals for the poor. 71
When it comes to integrity being weakened by personal relationships
and lack of personal or professional convictions, More stands out as partic-
ularly serious about his role as a lawyer, high official and a leading citizen.
70
As an indicator of possible lack of integrity in national jurisdictions, I take low scores on
civil and criminal justice in the World Justice Project Rule of Law Index (available on the
World Justice Project’s web site). A further indication of issues of integrity being widespread
at the national level, is the renewed focus by the United Nations Office on Drugs and Crime
(UNODC) on integrity issues in the Criminal Justice System. See also above note 57.
71
The literature on Thomas More’s life and thinking is vast. For general introductions, I con-
sulted John Guy, Thomas More: A Very Brief History, Society for Promotion of Christian
Knowledge, London, 2017; Richard Marius, Thomas More: A Biography, Alfred A. Knopf,
New York, 1984; Raymond Wilson Chambers, Thomas More, Endeavor Press, London,
2017 (first published 1935); George M. Logan (ed.), The Cambridge Companion to Thomas
More, Cambridge University Press, 2011; and Peter Berglar, Thomas More: A Lonely Voice
Against the Power of the State, Scepter Publishers, Cleveland, 2009 (first published in Ger-
man, 1999).

In his twenties, he may seriously have doubted whether to become

part of public affairs. He was attracted to a life secluded from the temporal
world, living in or next to the London Charterhouse from around 1500–
1503, a Carthusian Monastery at the time. 72 There he tested his vocation
for the priesthood, although without withdrawing completely from the
world. He continued to teach his students and gave public lectures on St.
Augustine’s City of God during this period.
In the end, he decided to seek political engagement. This was not
based on naïve or utterly idealistic ideas that he could drastically change
things for the better. But he had ideas of legal and political reform, the need
to balance executive power with adherence to reasonable laws, and about
developing amicable relations with foreign States. He realized that the best
way to improve society was not to stay in a cloister, but to become an ac-
tive citizen of a Christian commonwealth in line with the humanist thinking
of his day. 73
In seeking political engagement, he knew that abuse of power was
frequent. Among his lasting contributions as a political thinker is his dis-
cussions on how to confront tyranny.
4.3. Civilizing Politics
Abuse of power may be as old as power itself. Since power-relations are
part of any human society – and human beings per definition are political
creatures, living in more or less stable societies – such abuse and how to
stem it constitutes fundamental issues of political and moral philosophy.
In his thinking on such issues, More applied concepts and doctrines
framed by Greek philosophers such as Plato (427–347 BC) and Aristoteles
(384–322 BC). He belonged to a small group of English intellectuals who
were influenced by Italian Renaissance philosophers’ re-reading and trans-
72
The London Charterhouse was a Carthusian Priory 1371-1537, when it was dissolved by
Henry VIII. The Carthusian order, also called the Order of Saint Bruno, is a Catholic reli-
gious order of enclosed monastics. It was founded by Bruno of Cologne in 1084 and in-
cludes both monks and nuns. The order has its own Rule, called the Statutes, rather than the
Rule of Saint Benedict, and combines eremitical and coenobitic monasticism. The motto of
the Carthusians is Stat crux dum volvitur orbis, Latin for “The Cross is steady while the
world is turning”; Wikiwand, “London Charterhouse” (available on its web site).
73
For a short discussion of More’s motivations to seek political engagement, see John Guy,
“Shaping a mind”, in Thomas More: A Very Brief History, Society for Promotion of Chris-
tian Knowledge, London, 2017, pp. 1–8.

lations of original Greek philosophical texts, in particular Plato’s and Aris-

toteles’ texts on governance and the best ways to organize society.
Renaissance humanism did not form a coherent ideology or school of
philosophy. Rather, it provided new readings of some of the same antique
texts that Medieval philosophy was based on. In its Northern version, hu-
manism also relied heavily on the foundational texts of Christian antiquity,
notably those of the New Testament and the Church Fathers. 74 It represent-
ed a break with Medieval metaphysical system-building and speculation,
scholastic culture, arts of disputation and dialectic and a renewed focus on
reforms of church and society to improve the situation of its members. Its
educational programmes, designed to enable active citizens to cope with
the needs of the day, “carried an inherent moral purpose in the furtherance
of the common good, so that another component was moral philosophy,
especially directed to the obligations of the ruler and the citizen”. 75
In More’s thinking, a shift took place with ancient Greek values of
equality and justice, breaking with the Roman influenced values prevailing
in his society of glory, honour, ambition and private property. 76 The hu-
manist emphasis on moral and political philosophy may also have made it
easier for More to combine his extensive humanist studies with his study of
law, which his father John More (1450/53–1530), a highly respected lawyer
and judge, favoured. The proper role of law in society, being binding on
both rulers and citizens, was at the core of the humanist reform agenda.
The impulses from Italy seem first to have made its way to court circles
and to the legal world of the Inns court, where More learnt law from
1494. 77
It may seem paradoxical that Plato was among the foundational
thinkers of this paradigm shift in Western philosophy. He is primarily
known for his belief in a world of invisible forms or ideas, which he held to
be the real world, and for abstract speculation. However, the larger parts of
74
James McComica, “Thomas More as Humanist”, in George M. Lugan (ed.), The Cambridge
Companion to Thomas More (Cambridge Companions to Religion), Cambridge University
Press, 2011, p. 22.
75
Ibid., p. 23.
76
Ibid. Several of More’s friends and teachers were prominent scholars and linguists who had
travelled to Florence and Rome to study Greek language and philosophy, such as William
Grocyn (1446–1519), Thomas Linacre (1460–1524), John Colet (1467–1519), and William
Lily (1468–1522).
77
Ibid., p. 26.

his works – such as The Republic and The Laws, but also many of the So-
cratic dialogues – focus on how to improve the less than perfect material
and political world. 78
A central point for Plato, resonated in the writings of Cicero (106–43
BC), one of the few Roman thinkers that More held in high esteem, was
that humans are not born for themselves alone, “but our country claims a
share of our being, and our friends a share”. 79 In developing this perception
of humans as socially inter-connected, More warned against misconstrued
views on human liberty.
False expectations of life arise from such views, namely that a free
person is the one that can do whatever he wants. Rather, inherent in liberty
are to be guided by constraints such as the high commandments of God, the
laws made by humans to rule society, and the commands of those with le-
gitimate power. Given human nature, persons may easily fall prey to en-
slavement by obsessions, sins, or by society and rulers. One part of society
often enslaves another.
An antidote to such enslavement is to connect liberty with law, as
advocated by Cicero and further developed by More. 80 In his early works,
More underlined that liberty without law, even if you are a rich person, is
tantamount to bondage. In particular, he points to the importance of ‘skilled
princeps’, ‘leading citizens’ respecting the law. These are leaders that have
the virtues, training and ingenuity needed to secure the safety of the people
and provide justice. Their integrity is of utmost importance for society.
Leaders who do not respect law and liberty, develop into tyrants. The
quality of a ruler is made clear only by the actual liberty, prosperity, peace,
and joy of his people. 81
4.3.1. The Ever-Present Danger of Tyranny
There is a strong continuity in More’s thinking about the duties of leaders,
from his first literary works until his last works written during his 14 and a
half months of imprisonment before he was beheaded. A main theme is that
78
See Stanford Encyclopedia of Philosophy, “Plato”, 20 March 2004 (available on its web site).
79
Marcus Tullius Cicero, De Officiis, Walter Miller (trans.), Harvard University Press, Cam-
bridge, 1913 [44 BC].
80
More was shortly after his death called “the Christian English Cicero”, see Nicholas Harp-
field, Life and Death of Sir Thomas More, Early English Text Society, London, 1932, p. 217.
81
Gerard Wegemer, “Thomas More on Liberty, Law, and Good Rule”, in Curtright (ed.), 2015,
pp. 5–13, see above note 7.

true leading citizens have a duty to ensure that justice is done. To neglect to
do what the duty of his office requires is “like a cowardly ship’s captain
who […] deserts the helm, hides away covering in some cranny, and aban-
dons the ship to the waves”. 82
Even though More was a Christian thinker and statesman, many of
his ideas have resonated well beyond Christian circles. This is no surprise
since More’s humanist writings conveyed arguments and views which were
based on philosophical ideas. He held the view that reason and practical
wisdom led to conclusions that would not be contradicted but rather further
enlightened by Christian revelation.
More’s example has appealed to Christians, persons with other faiths,
as well as to non-believers. This is an important part of the reasoning be-
hind pope John Paul II’s proclamation of More as “Patron of Statesmen and
Politicians”. In the apostolic letter making the proclamation, the pope re-
ferred to support from “different political, cultural, and religious allegianc-
es”, indicating a “deep and widespread interest in the thought and activity
of this outstanding statesman”. 83
A fundamental issue for More and the tradition of thought he be-
longed to, was how a leading citizen, a statesman, or a philosopher should
respond to tyranny. Rulers developing into tyrants was seen as an ever-
present danger, given the temptations of power and the lack of strong insti-
tutional set-ups that could temper the ruler’s tyrannical inclinations. More
certainly realized that serving King Henry VIII could become precariously
difficult, given the Kings propensity to pass from mild rule into repressive
and arbitrary rule. In general, More favoured republican and consultative
government over that of a single ruler to avoid abuse of power. 84
More also favoured that members of Parliament should be given
freedom of expression, so that the King would know what they really felt
about his propositions. In April 1523 he was chosen as speaker of the
House of Commons, and in a speech there he made the first recorded peti-
tion for the exercise of freedom of speech in parliament. Effective govern-
ance depended on parliamentarians’ freedom to speak their mind without
82
Thomas More, De Tristita Cristi, in The Complete Works of St. Thomas More (CW), 15 vols.,
Yale University Press, New Haven, 1963–97, vol. 14, p. 265.
83
John Paul II, Apostolic Letter Issued Motu Proprio: Proclaiming Saint Thomas More Patron
of Statesmen and Politicians, section 1, see above note 54.
84
Cathy Curtis, “More’s public life”, in Logan (ed.), 2011, p. 74, see above note 71.

fear of reprisals, he argued. 85 He also practised free speech in Parliament

himself, by speaking against Henry VII’s and later against Henry VIII’s
proposals for funding of wars or other purposes by increasing taxation. He
was influential in convincing Parliament to reduce the demanded amounts,
much to the Kings’ displeasure.
These views and practices were part of a well-thought-out strategy
that More in his humanist works advised to confront and minimize the con-
sequences of tyranny or abusive rule. They were based on a realistic view
that to influence rule by a tyrant so it at least to some extent benefitted the
people, and not only the ruler, killing the tyrant or rebelling against him
would not lead to the desired results. More’s theorizing on tyranny and how
to confront it, is an important key to understanding him as a statesman and
his motivation for serving King Henry VIII at the highest levels, despite his
knowledge of the Kings tyrannical inclinations.
More elaborated his view in Declamation in response to Lucian’s
The Tyrannicide, a text More translated from Greek into Latin in 1506. 86
Lucian of Samosata (120-after 180 AD) was a Greek rhetorician, pam-
phleteer, and satirist who wielded considerable influence on both More and
Erasmus. His writings embody a sophisticated and often embit-
tered critique of the shams and follies of the literature, philosophy, and in-
tellectual life of his day.
The Tyrannicide presents a fictional court speech in which a citizen
claims to deserve the city’s reward, provided for by law, for having killed
the tyrant, although indirectly. He had actually only managed to kill the
tyrant’s son, but when the tyrant found his son killed, he committed suicide.
The speaker nonetheless presents himself as a tyrannicide and the city’s
saviour.
More’s Declamation presents a court speech of a fellow citizen who
challenges the tyrannicide’s right to the legal reward. In effect, the Decla-
85
Ibid., p. 77.
86
More’s Declamation is available in: The Complete Works of St. Thomas More, 15 vols., Yale
University Press, New Haven, 1963–97, vol. 3, part 1. In 1505–1506, More and Erasmus
translated some of Lucian’s writing into Latin. More translated the Cynicus, Minippus,
Philopseudes and Tyrannicide, and both he and Erasmus wrote declamations replying to the
latter work.

mation provides a diagnosis of tyranny and an account of how best to con-

front it. 87
There are several noteworthy points in More’s account. Firstly, he
shows how tyranny represents an ever-present danger. Even benevolent
rulers may decay into tyrants. True, the tyrant is a disturbed individual, car-
ing for his own interests only despite being a leader with a duty to care for
the interests of his people. He is, however, not so different from other peo-
ple as we like to think. As More showed in his history of Richard III 88 and
in the first book of Utopia, 89 European rulers of his own time were pre-
pared to use several measures associated with tyranny, such as aggressive
wars, killing their opponents, and manipulating currency and law to serve
their interests. 90
Secondly, since tyranny is an ever-present danger, those with influ-
ence and political authority must make efforts to learn how to respond to it
intelligently and efficiently. Killing the tyrant (or his son) is not to produce
sustainable results. We need to think as a physician, who knows that to cure
a disease you must know its cause as well as which treatment are best suit-
ed to cure it.
In understanding tyranny, More refers to Plato (The Republic) and
Aristotle (Politics), who define a tyrant as a solitary ruler. 91 However, not
all solitary rulers are tyrants. For Aristotle, the difference is that a King
rules for the good of his subjects, while a tyrant rules only with a view to
his own advantage. For More, the solitary status of the tyrant is a conse-
quence of the disorder of his soul. He has an unrestrained desire that re-
spects no limitations. He cannot have a partner; not even his son.
In analysing the tyrant’s desire, More follows Plato and Cicero in
perceiving the human soul as composed of three parts, each with its own
object of desire. Reason desires truth and the good of the whole individual,
the spirit is preoccupied with honour and competitive values, while appe-
tite has the traditional low tastes for food, drink, and sex.
87
For a detailed account of the Declamation, see Carson Holloway, “Statesmanship, Tyranny,
and Piety”, in Curtright (ed.), , 2015, pp. 17–36, see above note 7.
88
More, 1513, see above note 4.
89
90
Holloway, 2015, p. 19, see above note 87.
91
Plato, The Republic, Allan Bloom (trans.), Basic Books, New York, 1991 [376 BC], book 9;
and Aristotle, Politics, Carnes Lord (trans.), University of Chicago Press, 1984, book 3,
chapter 7.

Because the soul is complex, an erroneous calculation is not the only

way it can go wrong. The three parts pull in different directions, and the
low element in a soul in which it is overdeveloped, can win out. It follows
that a good condition of the soul requires more than just cognitive excel-
lence. The healthy or just soul has harmony in which its three parts all
functions properly. Reason understands the Good, while spirit and appetite
desire what is good for them to desire, being guided by reason.
The soul of the tyrant has departed from this order. He is, according
to Plato, ruled not by his reason but by his appetite, which craves for satis-
faction without boundaries. He is driven by lust for money, food and sex. 92
More agrees with Plato on the distorted order of the tyrant’s soul. Tyranny
involves the rule in the soul of the lower parts. But he lays the emphasis on
the role of spiritedness, the desire for honour and a unique position in soci-
ety, rather than on the bodily desires. A tyrant is dominated by ambition,
lust of power, greed, and thirst for fame. He wants to elevate himself above
other human beings by becoming the supreme power in the city or the
realm. 93
In arguing for this position, More points that beasts that are driven by
bodily desires such as hunger, can only show certain elements of a tyranni-
cal nature. Human beings go further in succumbing more completely to
tyranny. Appetite or bodily desires are not in themselves enough to bring
tyranny into being. 94
If satisfying bodily desires was the main desires of tyranny, becom-
ing a wealthy businessman would probably give better results. A tyrant, in
contrast, lives under threat of violent death at the hands of oppressed and
desperate subjects. His ability to enjoy bodily pleasures would be limited.
Because the tyrant is driven by spirited desires, he cannot share pow-
er with anyone. If the beast does not tolerate partners in the hunt due to
their hunger (appetite), how can we “imagine that a human tyrant, puffed
up by pride, driven by the lust of power, impelled by greed, provoked by
the thirst for fame, can share his tyranny with anyone?”. 95
Thirdly, even if the tyrant is driven by spirited desires, he also lacks
restraint in relation to bodily desires, resulting in him resorting to murder,
92
Plato, 1991, 572d–575d, see above note 91.
93
Holloway, 2015, pp. 22–23, see above note 87.
94
Ibid.
95
More, Declamation, p. 101, see above note 86.

rape, and robbery. This is so because he may use objects of bodily desires
to ascertain his total dominance over his realm. To keep public order and
rule moderately, would not satisfy his lust for complete dominance. He
cannot accept any kind of equality between his subjects and himself. He
murders, robs, and rapes to manifest his supremacy and humiliate those he
rules over.
There is also an important impunity factor, explaining the tyrant’s
excessive abuses. Since he is placed totally above the law, he is free to ful-
fil any bodily desire. In his soul, the worst parts dominate the best (reason),
and this results in him being unhappy and “full of confusion and regret”. 96
He is therefore constantly seeking distractions by fulfilling his bodily de-
sires.
Fourthly, the resulting characteristics of tyrannical rule may be sum-
marized as a lawless form of rule in contrast to legitimate authority, that
governs by laws and obeys laws. The tyrant may call his directives ‘laws’,
but they hardly deserve the name since he can change them at any time. A
law is a settled rule superior to any single man’s will, and the tyrant there-
fore cannot accept it. His rule becomes unpredictable, spreading fear and
distress among his subjects. 97
Tyranny is also a regime devoid of any freedom. All of the tyrant’s
subjects evidently lack freedom, living at the mercy of the tyrant. However,
the tyrant himself also lacks genuine freedom. He cannot choose what is
good for human beings, namely to be governed by reason and laws. He
does not know real friendship; he reduces other human beings to become
tools of his own desires. His freedom is therefore empty and illusory. He is
enslaved by his own desires, dominated by forces within his own distorted
soul.
More’s teaching on tyranny is a dark tale. Not the least because of his
insistence that it is rooted in human nature and its strong desires. It is ex-
treme and evil, but it is not as rare as we would like to think. It tends to de-
velop from the normal functioning of the human soul, which is often not
properly regulated. When the man who killed the tyrant’s son claims to
have eradicated tyranny and demand to be rewarded, it is another example
of the spirited desire for public recognition beyond what is truly reasonable.
96
Plato, 1991, 577e, see above note 91.
97
More, Declamation, p. 101, see above note 86; Holloway, 2015, p. 24, see above note 87.

That means that the impulses – the inflated desire for honour and
public praise – that led to tyranny is also present in the attempted destruc-
tion of tyranny. In addition, there is a question about the motives: was the
attack on the tyrant based on a genuine will to eradicate tyranny or was it
done “in revenge or retaliation for some private injury done to you”?. 98
Those acting against the tyrant may include decent men who suffered under
brutal oppression, but it could also include selfish men who resented the
fact that the tyranny operated against their own benefit. There might even
be men included who want to replace the tyrant, while upholding tyranny.
According to More, in any society there is a part of the population
that must be categorized as wicked. Even if they form just a small part,
their views might influence the deliberations of the society if they are not
refuted. The recognition that wickedness is always part of politics, also in
non-tyrannical regimes, must make us realize that any regime carries the
seeds of tyranny. 99
In More’s own words, even “legitimate authorities, not only govern-
ing by laws but also obeying laws, and so very much milder than a tyranny,
are nevertheless so dominated by the desire for power that they spare not
the lives of intimate friends rather than allow them to share their rule”. 100
More’s conclusion is that it is naïve to think about the tyrant as an
exceptional person, a monster or a psychopath, and that lawful rulers could
not become tyrants. The same spirited motives that result in tyranny – love
of power and fame – are present even in legitimate rulers. The difference is
that they are present in more restrained forms.
Finally, it must not be forgotten that even if the tyrant does not toler-
ate co-rulers, there are plenty of enablers, supporters and henchmen. You
may succeed in killing the tyrant, but utterly fail in eradicating tyranny
which is brought forward by those who willingly benefited from his rule,
were protected by it and themselves committed outrageous crimes.
4.3.2. The Fundamental Question of Integrity
We have now reached the point in discussing tyranny where what could be
called the fundamental question of integrity should be asked: How to con-
98
99
Holloway, 2015, p. 27, see above note 87.
100

front tyranny in such a way that you don’t sow the seeds of further tyranny,
neither in your own soul nor in society?
According to More, the answer is that you should rebalance your
soul and leave the level of spiritedness. Reason should become the guide of
your actions, not motives of being recognized for courage, becoming fa-
mous and publicly praised. Since the cause of tyranny is the domination of
spirited desires, actions based on these desires cannot be the solution.
It does not mean, however, that there is no need for courage and oth-
er spirited desires in confronting tyranny. The problem arises, however,
when desires of fame, honour, and power remain uncontrolled. What is
needed is courageous actions under the direction of reason.
The fundamental question could thus be rephrased as how to ensure
that reason remain in control of spirit and appetite in confronting tyranny?
More makes this point clear by comparing the tyrannicide with a
doctor. The criteria by which to judge the professional quality of a doctor is
whether he heals or improves the condition of a patient, not how strongly
he wants or tries to do so. If he pretends to know how to heal me, without
being competent, he deserves only “condemnation for rashly meddling, to
my danger, in this matter in which he was unskilled”. 101
In a similar way, what the law seeks in rewarding killing of the tyrant
and eradicating tyranny, is a “resourceful man, one not only stronghanded
but (much more) strong-hearted; able in stratagem rather than in force; one
who knows how to lay plots, hide his traps, make the most of his opportu-
nities”. 102
Confronting tyranny effectively requires intelligence and skill. An
incompetent doctor may leave the patient in a worse condition than before
his intervention. Likewise, confronting tyranny without proper strategies
and skills may strengthen it and increase the suffering of ordinary people
who now may be targeted innocently by an enraged tyrant.
Even if Lucian’s character, claiming that he should be rewarded for
tyrannicide, had succeeded in killing the tyrant himself, the forces that had
enabled tyranny would still be operational. There would be men who had
been privileged by his rule, stealing from and suppressing their fellow citi-
zens, and who would be eager to find a successor to the tyrant. Even if they
101
Ibid., p. 109.
102
Ibid.

failed, there would be civil war or uprisings, people would die and the goal
of establishing a legitimate free public order would be hard to attain.
More returns to the question of how a leading citizen or a statesman
could confront tyranny or milder forms of corrupted politics in the first
book of Utopia, which was written about 10 years later than the Declama-
tion (in 1515-6). 103 Here the focus is on the problem of ensuring that rulers
receive – and take – appropriate advice. Given the corrupted nature of poli-
tics, from the point of view of a prospective councillor, the question is if he
should commit himself to public affairs at all. The discussion between the
philosopher-traveller, Raphael Hythloday (who in the second part recounts
his experiences from Utopia, an island State based on socialist, tolerant,
and equality principles), Peter Giles (a humanist official, based on a real
person), and Thomas More (the author, but not necessarily always present-
ing the author’s views) on this issue is revealing:
‘My dear Raphael’, he said, ‘I’m surprised that you don’t en-
ter some King’s service; for I don’t know of a single prince
who wouldn’t be very glad to have you. Your learning and
your knowledge of various countries and peoples would enter-
tain him while your advice and supply of examples would be
helpful at the counsel board. Thus you might admirably ad-
vance your own interests and be of great use at the same time
to all your relatives and friends.’
‘About my relatives and friends’, he replied, ‘I’m not
much concerned, because I consider I’ve already done my du-
ty by them tolerably well. While still young and healthy, I dis-
tributed among my relatives and friends the possessions that
most men do not part with till they’re old and sick (and then
only reluctantly, when they can no longer keep them). I think
they should be content with this gift of mine, and not insist, or
even expect, that for their sake I should enslave myself to any
King whatever.’
‘Well said’, Peter replied; ‘but I do not mean that you
should be in servitude to any King, only in his service.’
‘The difference is only a matter of one syllable’, said
Raphael.
‘All right’, said Peter, ‘but whatever you call it, I do not
see any other way in which you can be so useful to your
103

friends or to the general public, in addition to making yourself

happier.’
‘Happier indeed!’ said Raphael. ‘Would a way of life so
absolutely repellent to my spirit make my life happier? As it is
now, I live as I please, and I fancy very few courtiers, howev-
er splendid, can say that. As a matter of fact, there are so many
men soliciting favours from the powerful that you need not
think it will be a great loss if they have to do without me and a
couple of others like me.’
Then I [More] said, ‘It is clear, my dear Raphael, that
you seek neither wealth nor power, and indeed I prize and re-
vere a man of your disposition no less than I do the mightiest
persons in the world. Yet I think if you could bring yourself to
devote your intelligence and energy to public affairs, you
would be doing something worthy of your noble and truly
philosophical nature, even if you did not much like it. You
could best perform such a service by joining the council of
some great prince and inciting him to just and noble actions
(as I’m sure you would): for a people’s welfare or misery
flows in a stream from their prince as from a never-failing
spring. Your learning is so full, even if it weren’t combined
with experience, and your experience is so great, even apart
from your learning, that you would be an extraordinary coun-
sellor to any King in the world.’
‘You are twice mistaken, my dear More’, he said, ‘first in
me and then in the situation itself. I don’t have the capacity
you ascribe to me, and if I had it in the highest degree, the
public would still not be any better off if I exchanged my con-
templative leisure for active endeavour. In the first place, most
princes apply themselves to the arts of war, in which I have
neither ability nor interest, instead of to the good arts of peace.
They are generally more set on acquiring new Kingdoms by
hook or crook than on governing well those they already have.
Moreover, the counsellors of Kings are so wise already that
they don’t need to accept or approve advice from anyone
else – or at least they have that opinion of themselves. At the
same time, they endorse and flatter the most absurd statements
of the prince’s special favourites, through whose influence
they hope to stand well with the prince. It’s only natural, of
course, that each man should think his own inventions best:
the crow loves his fledgling and the ape his cub.

‘Now in a court composed of people who envy everyone

else and admire only themselves, if a man should suggest
something he has read of in other ages or seen in practice
elsewhere, those who hear it act as if their whole reputation
for wisdom would be endangered, […].’ 104
In the further discussion, More holds on to his conviction that if
Raphael could overcome his aversion to court life, his
advice to a prince would be of the greatest advantage to the
public welfare. No part of a good man’s duty […] is more im-
portant than this. Your friend Plato thinks that common-
wealths will be happy only when philosophers become Kings
or Kings become philosophers. No wonder we are so far from
happiness when philosophers do not condescend even to assist
Kings with their counsels. 105
Raphael reacts by asking More if he thinks his advice to the King of
France to give up all ideas of conquering Italy or other realms would be
well received when all other advisors were presenting ingenious plans for
successful military campaigns to expand his Kingdom. He would argue that
one King can only manage to rule a limited Kingdom (“the Kingdom of
France by itself is almost too much for one man to govern well”), and that
war always makes life worse for the people. 106
More concedes that in such a setting, advices for peace and better
domestic rule would not be enthusiastically received. 107
Then Raphael continues by referring to advice to the King on various
schemes on how to fill the treasury; one more manipulative of the people
than the other. His councillors maintain that it will only benefit the King
that his people remain destitute due to heavy taxation, since “his own safe-
ty depends on keeping them from getting too frisky with wealth and free-
dom. For riches and liberty make people less patient to endure harsh and
unjust commands, whereas poverty and want blunt their spirits, make them
docile, and grind out of the oppressed the lofty spirit of rebellion”. 108
When Raphael again argues that his views, refuting the premises of
such advice, and maintaining that a King can only succeed when genuinely
104
More, 1516, pp. 14–15, see above note 3.
105
Ibid., pp. 28–29.
106
Ibid., p. 31
107
Ibid., p. 32.
108
Ibid., p. 33.

caring for the people, More again concedes that such views will indeed be
met by deaf ears. Raphael should therefore refrain from giving advice that
he “knows for certain will not be listened to”. 109
In the councils of Kings, there is no room for lofty academic philos-
ophy, ill adapted to the situation, continues More.
But there is another philosophy, better suited for the role of a
citizen, that takes its cue, adapts itself to the drama in hand
and acts its part neatly and appropriately. This is the philoso-
phy for you to use. […] If you cannot pluck up bad ideas by
the root, or cure longstanding evils to your heart’s content,
you must not therefore abandon the commonwealth. Don’t
give up the ship in a storm because you cannot hold back the
winds. […] Instead, by an indirect approach, you must strive
and struggle as best you can to handle everything tactfully –
and thus what you cannot turn to good, you may at least make
as little bad as possible. For it is impossible to make every-
thing good unless all men are good, and that I don’t expect to
see for quite a few years yet. 110
In reply, Raphael explains that he cannot give up his convictions and
lie. He is not sure what More means by ‘indirect approach’ either. Besides,
in a council,
there is no way to dissemble or look the other way. You must
openly approve the worst proposals and endorse the most vi-
cious policies. A man who praised wicked counsels only half-
heartedly would be suspected as a spy, perhaps a traitor. And
there is no way for you to do any good when you are thrown
among colleagues who would more readily corrupt the best of
men than be reformed themselves. Either they will seduce you
by their evil ways, or, if you remain honest and innocent, you
will be made a screen for the knavery and folly of others. You
wouldn’t stand a chance of changing anything for the better by
that “indirect approach”.
This is why Plato in a very fine comparison declares that
wise men are right in keeping away from public business.
They see the people swarming through the streets and getting
soaked with rain; they cannot persuade them to go indoors and
get out of the wet. If they go out themselves, they know they
109
Ibid., p. 36
110
Ibid., pp. 36–37.

will do no good, but only get drenched with the others. So

they stay indoors and are content to keep at least themselves
dry, since they cannot remedy the folly of others. 111
Where does this intriguing discussion leave us? Undoubtedly, More
was receptive to see the strong points of both views. His preference of us-
ing dialogues in his writings was not only a tool he used to create interest-
ing texts but reflected a fundamental feature of his mind. He strove to un-
derstand and measure the strength of opposing views and arguments. Set-
tling the issue of whether to enter the King’s service was not easy for him.
There was a fundamental integrity issue at stake: would he be able to
sustain his principles as a leading citizen, putting the well-being of the
people first, contribute to just outcomes of trials, and turn ruthless deci-
sions to be “as little bad as possible”? 112 Or would he be corrupted himself,
unable to withstand the pressure inherent in a position where lack of ex-
plicit consent could be seen as proof of betrayal?
Such reflections pave the way for a third formulation of the funda-
mental question of integrity: How can a person enter service of a ruler
guided by spirited desires being convinced that he or she will be able to
remain guided by reason?
4.4. More as Statesman
This was a fundamental question for More when considering entering the
King’s service. He realized early one that Henry VIII was at least a poten-
tial tyrant. When he on 25 October 1529 succeeded Thomas Wolsey (1473–
1530) as lord chancellor, the King was already at war against the Catholic
Church and against ancient principles of English and European civilization.
At the beginning of his public life, More could not have predicted
that Martin Luther (1483–1546) and other religious reformers would split
the Church and reshape Europe, that Ottoman military forces would ad-
vance as far as Vienna, and that Henry VIII would desire both an annul-
ment of his marriage to Catherine of Aragon (1485–1536) and to establish
England as an independent realm of Rome. 113
He had however, as I have shown above, long before he left his post
as under-sheriff of London and became a member of the King’s Council in
111
Ibid., p. 39.
112
Ibid., p. 35
113
Curtis, 2011, p. 70, see above note 84.

1518, reflected extensively on the costs and dangers for a wise and just
man in serving the King. 114 In accepting to do so, he kept to the main prin-
ciples he had formulated in his writings on how to civilize politics; by ap-
plying an ‘indirect approach’ and practical wisdom, always adapt to the
situation at hand, refraining from radical and sweeping actions. During his
conflict with the King he never conspired against him, plotted against him
or even denounced him publicly. Nevertheless, both while in office and af-
ter stepping down, he continued to work for what he thought was the best
for the commonwealth and its people.
More’s background as both lawyer, humanist scholar and a devout
Christian with inclinations for a life of contemplation and religious studies
seems to have prepared him well for the kind of uncorrupted office he be-
came known for. There are, however, considerable debate among scholars
about the reasons for him to enter the King’s council in 1518, and later
climb to ever higher positions. Initially, he expressed reservations about the
inconveniences and threats to reputation entailed in such service. 115
The simplest explanation may be that he felt obliged to contribute to
making things as little bad as possible, along the lines of the discussion in
Utopia rendered above. 116 Entering the King’s service would increase his
influence in reforming the English legal and political order in a way that
benefitted the people.
There might, however, also have been more specific reasons. Pope
Leo X hade proposed in a bull of 6 March 1518 a truce among European
powers, which would enable a united front against the Turks in response to
Ottoman successes in Egypt and Syria. More may have thought that by en-
tering royal service at this point, he could ensure that England supported
such a collective security initiative to European peace-making. England’s
role in entering the October 1518 Universal Peace Treaty (proclaimed in
London), created needs for additional skilled public servants to bring it to
fruition. The treaty represented an early and important attempt to address
114
More was appointed under-sheriff in 1510. As such, he was a permanent official who ad-
vised the sheriffs and sat as judge in the sheriff’s court. He received a generous stipend and
had a lucrative right to represent the City in the royal courts at Westminster.
115
116
More, 1516, p. 35, see above note 3.

European international relations by peaceful agreements, and it must have

been attractive for More to assist in its adoption and implementation. 117
A further explanation could be that More already successfully had
taken part in extensive trade negotiations on behalf of the King before he
decided to enter the King’s council. When he was offered a permanent po-
sition by the King, he may have seen the advancement as a natural devel-
opment in serving the country.
He had also recently shown his ability to intervene to restore public
order, acting in his undersheriff capacity to quell riots in London by a
group of young English apprentices. They had looted the houses, shops and
warehouses of immigrant communities on a May day in 1517. More had
called the rioters to order. His eloquence alone, according to the chroniclers,
stemmed the worst of the violence. 118
When More took his oath as a councillor, Henry VIII gave him some
advice, urging him to “first look unto God and after God unto him”. 119 This
could be interpreted as an assurance by the King that More could stay true
to his principles; an assurance the King later would depart from. 120
4.4.1. Uncorrupted Fairness
During his career as a lawyer, judge, speaker in Parliament, ambassador,
and in the King’s service, More was highly respected for being uncorrupted
and fair. In summing up his achievements, he underlined though that he
had been “a source of trouble to thieves, murderers, and heretics”. 121 As a
judge, he would avoid any conflict of interests, for example by not hearing
cases concerning related persons.
As lord chancellor he would continue reforms of his predecessor,
Thomas Wolsey, simplifying procedures and increasing access to equity
courts. More regarded law as applying equally to all, and its proper appli-
cation was fundamental to a healthy secular and ecclesiastical society. The
117
For further explanation, see Curtis, 2011, pp. 75–76, see above note 84. The treaty did not
succeed in securing long-term peace in Europe.
118
Guy, 2017, chap. 3, “The King’s servant”, see above note 71.
119
Ibid.
120
Ibid.
121
From More’s epitaph for the Tomb in Chelsea Old Church, which he wrote himself in 1532.
T.E. Bridgett, “Sir Thomas More’s Epitaph”, in Life and Writings of Sir Thomas More,
Burns & Oates, London, 1892, pp. 250–252.

administration of the laws required the greatest prudence, courage and

moderation.
More’s training as a lawyer was by intense oral instruction and exer-
cises of solving cases. From 1496, he had studied at Lincoln’s Inn, being
constantly challenged together with his fellow students by senior barristers
to solve difficult legal questions. The instruction was also organized as tri-
als, where the students had to act as opposing counsel. In addition, there
were periods of lectures given by skilled lawyers on a statute or branch of
law. Legal education at the time has been characterized as “rigorous and
detailed, and fostered exceptional skills in memory, forensic analysis and
argumentation that would serve More well throughout his legal and politi-
cal life”. 122
He was portrayed by his first biographer and son-in-law, William
Roper (1496-1578), as “patient, moderate, affable and as a master of his
passions through the exercise of reason, years of study and religious reflec-
tion”, in contrast to the King who could move swiftly from “personal inti-
macy to mortal threat if policy or passion required, indicating his […] lack
of capacity for constant friendship”. 123
More underlined that his pre-occupation with humanist studies, poet-
ry, literature and rhetoric had served him immensely in his public role. The
study of poets, orators, and histories is of unrivalled value in the acquisi-
tion of the “practical skill” of “prudence in human affairs”. 124
4.4.2. Why Did More Hunt Heretics?
I have portrayed More as an eminent lawyer, highly respected by his fellow
citizens in London, a statesman holding the highest positions in the emerg-
ing English State and a renowned humanist throughout Europe. He was a
man of faith and reason, a man for all seasons, one who solved conflicts
rather than exaggerating them. 125
122
123
Ibid., p. 79.
124
Ibid., p. 72.
125
More was called a “man for all seasons” during his lifetime. Robert Bolt’s play “A Man for
All Seasons” (1954) about More’s life and conflict with Henry VIII, made the phrase famous.
The play was subsequently made into a multi-Academy Award-winning 1966 feature film
and a 1988 television movie, see Fred Zinnemann (Producer and Director), “A Man for All
Seasons”, motion picture, 1966, United Kingdom, Highland Films; and Robert Bolt (Pro-

Some would argue, however, that this is to give him too much praise.
He should rather be portrayed as a fanatic, responsible for the burning of
heretics, lacking in pragmatism and willingness to compromise. Such criti-
cism was mounted already during his lifetime and in the aftermath of his
conflict with Henry VIII. It has also found expression in contemporary
popular culture and scholarship. 126
To reconcile the dissonance between the tolerance demonstrated in
his humanist writings and his intolerance of Protestantism may not be easy
in our time, where freedom of religion is solidly anchored in international
law as well as in most national jurisdictions. 127 In Utopia, there is freedom
of religion (except for atheism), but More was strongly against such free-
dom in his native England.
He treated Luther and Protestantism very harshly. During his last 10
years of service for the King, he devoted considerable energy and time to
enforce England’s heresy laws. This was not an incidental part of his life
and work. It was central to his understanding of his professional duties. 128
He, however, denied any involvement in torture, although he was not
against the death penalty for heresy, which was part of the legislation and
culture of the time he lived in. Historians believe that six heretics were
condemned to be burned during More’s tenure as lord chancellor. 129
Heretic dissent from the dominant catholic Christianity was known in
England from the late fourteenth century, when John Wycliff (1330–1384)
preached a theology anticipating Protestantism. The movement became
ducer) and Charlton Heston (Director), “A Man for All Seasons”, motion picture, 1988,
United States, Turner Network Television.
126
The most important early example is John Foxe’s (1516–1587) famous Book of Martyrs
(1563), a graphic and polemic account of those who suffered for the cause of Protestantism,
including in the hands of Thomas More: John Fox, Book of Martyrs, John Day, London,
1563. In 2009 a novelist won the Man Booker Prize for Fiction with a story in which she has
More admit in conversation the allegations of torture he denied in print: Hilary Mantel, Wolf
Hall, Fourth Estate, London, 2009, pp. 628–9. Wolf Hall is also the title of a widely seen TV
series by the BBC2, based on the book.
127
Although far from being practiced everywhere, as documented by among others, Pew Re-
search Centre.
128
Richard Rex, “Thomas More and the heretics: statesman or fanatic?”, in Logan (ed.), 2011,
p. 94, see above note 71. The modern tradition of portraying More as an unbalanced inquisi-
tor derives chiefly from Marius, 1984, see above note 71; and from Geoffrey Elton, Studies
in Tudor and Stuart Politics and Government, 4 vols., Cambridge University Press, 1974–92.
129
Ibid.

known as Lollardy, and ecclesiastical and royal authorities co-operated in

repressing it. A statute was adopted in 1401 that provided for the burning of
heretics. Another result was a profound suspicion of English translations of
the Bible, which were produced by members of the Lollardy movements. 130
Finally, a concern grew among authorities that heresy led to sedition, due to
the outbreak of the Peasants’ Revolt (1381) at the same time when Wyc-
liffe’s teachings were attracting popular support. 131
Under Henry VII and Henry VIII, persecution of perceived heretics
intensified. More became actively involved in proceedings against follow-
ers of Luther in 1521. Henry VIII decided to write against Luther’s attack
on the Catholic church in his pamphlet, Babylonian Captivity of the Church
(1520). More was called in to help with Henry’s Assertion of the Seven
Sacraments (1521). 132
The impact of the new ideas was found by English authorities to be a
threat that had to be defeated from around the mid-1520s. This was at the
same time as the bloody Peasants War took place in Germany. In particular,
measures to hinder the spread of a new translation of the New Testament by
William Tyndale (1494–1536) was seen as important. The book was smug-
gled into England from 1526 on, despite efforts by the English bishops to
stop it. By the end of the 1520s, networks of Lutherans and Lollards were
exposed, further alarming the authorities.
In the 1530s, the religious situation became more complicated, due to
Henry VIII’s ‘Great Matter’. He needed to divorce from his first wife in
order to re-marry (see Section 4.5.). Evangelicals tended to support divorce,
while conservative Catholics were against it. When separating the English
church from the papacy, Henry started a process that eventually (after his
death) led to a Protestant settlement.
More ended up being the most well-known victim of Henry’s Refor-
mation despite having acted together with the King against Luther and oth-
er reformers during the 1520s.
130
More was, nevertheless, in favour of the church producing an English translation of the Bi-
ble. It should, however, be without all the mistakes that the reformers’ translations contained.
A true English translation should be undertaken as soon as possible. Guy, 2017, chapter
three: “The King’s servant”, see above note 71.
131
Ibid.
132
Rex, 2011, p. 95, see above note 128.

More defined heretics as persons who held “self-defined opinions

contrary to the doctrine that the commonly known Catholic church teach
and hold necessary for salvation”. 133 The main problem was that heretics
placed their own personal opinion above the consensus of the church,
which was guaranteed by the Holy Spirit. He was not willing to accept the
arguments by Protestants that they based their theological views on their
own reading of the Bible, as in his view it was only the Church that could
determine the true meaning of Biblical texts.
For More religion was crucial not only for salvation, but for the order
of society. Heresy resulted in conflict, wars and misery. But there were
more at stake: heretics also destroyed people’s prospects of eternal salva-
tion and their immortal soul. It represented treason against God and was the
worst of all crimes. He thought Christian Kings to be “sacral figures”, who
were responsible even for their subjects’ spiritual affairs. But only within
the boundaries of a united church. 134
In 1529, More was commissioned by the bishop of London, Cuthbert
Tunstall (1474-1559), to possess and read forbidden books for the purpose
of refuting them in English. The result was, among others, Dialogue Con-
cerning Heresies (1529) 135 and Confutation of Tyndale’s Answer
(1532/33). 136 In 1533 he published Apology, a pamphlet where he defended
and clarified his actions as lord chancellor concerning heretics. 137
More has been criticized for being unpolite and rude in his polemic
against the Protestants. However, the reformers used very harsh language
themselves, for example by coining the pope as Antichrist and featuring
Catholic clergy as obscene. More reasoned that he had to fight in a similar
language, applying his considerable rhetoric skills.
On the argument that by burning heretics there was a risk of convict-
ing innocent persons, he replied that there was the same risk in other crimi-
nal cases. Besides, a first offence could be atoned for by abjuration and
penance. The obstinate or relapsed, on the other hand, were “well and wor-
thily burned”. 138
133
CW, vol. 10, p. 30, see above note 82.
134
135
Thomas More, Dialogue Concerning Heresies, in CW, vol. 6, see above note 82.
136
Thomas More, Confutation of Tyndale’s Answer, in CW, vol. 8, see above note 82.
137
Thomas More, Apology, in CW, vol. 9, see above note 82.
138

During his last 10 years of service, both before and during his period
as lord chancellor, “heresy was the single most time-consuming issue
Thomas More dealt with”. 139 He was very concerned, however, that actions
against heretics should be in compliance with the laws. When accused of
transgressing legal bonds in heresy cases, he refuted that strongly.
The policies More implemented were also in line with what the bish-
ops of the Catholic church wanted of him. At the time, it was highly unusu-
al that a layman played such an important role as theological polemist,
demonstrating the church leaders’ unusual confidence in him.
His role in confronting heresy in the service of the King was more
conventional. It was first and foremost a function of his public position.
“Since the time of Henry V, the oath sworn by every man who took office
under the crown had included an undertaking to assist the Church in the
struggle against heresy.” As lord chancellor, being the head of the judiciary,
he was under an obligation to repress heresy. 140
However, More’s motivation to write extensively against Protestant-
ism was also based on personal conviction. He perceived that Protestantism
represented a serious threat to the existing order in England and Europe. It
rapidly attracted support from learned men such as himself. The Refor-
mation introduced a new version of Christianity, which would lead to vio-
lent social and political revolutions in Europe.
Regardless of how convincing such justifications may appear, diffi-
cult questions remain. Could such beliefs justify that he acted against here-
tics in the way he did? Should he rather have made efforts to temper the
bishops’ and the King’s wishes for repressive measures? Did More stay
governed by reason in his actions against heretics or did he let spirited de-
sires rule?
In answering such questions, one must take into account the context
of More’s thinking and actions. One’s judgment should not be based on
solely modern prepositions. By taking a contextual stand, I believe the con-
clusion must be that More remained governed by reason. He acted like a
first citizen and not as a fanatic.
This conclusion does not imply that his reasons should not be criti-
cized. We should not endorse his intolerance, even if we can understand his
139
Ibid., p. 107.
140
Ibid., p. 108.

reasoning. It does, however, mean that we can still learn about integrity
from More. He stayed a man of reason, even if his reasons were wrong.
His mistake entails important lessons. Even if you preserve integrity
in the More-sense by letting your reason and faith rule, following your con-
science, you may be wrong. Infallible religious or philosophical truths are
unattainable, even though, at a personal level, you may choose to base your
life on them. At the State level, however, you should not operate according
to such convictions. You should refrain from appealing to the consensus of
any institution, such as the church, as something that cannot be criticized.
States that present themselves as built on infallible truths lead to tyranny
and oppression, even if they treat all but the heretics nice.
The full meaning of religious tolerance in the affairs of the State may
not have been explicitly taught by More at any time, although his humanist
writings pointed in that direction. In Utopia, at least, he showed that a soci-
ety could function well even if it practised a lot more tolerance than Eng-
land and himself as a State official.
4.5. More’s Conflict with Henry VIII
The main controversy with Henry VIII was about the independence of the
English Church. The King wanted The English Church to depart from the
Catholic Church because of the Pope’s unwillingness to accept his divorce
from his first wife, Catherine of Aragon, who did not give him a son. The
King wanted to marry Anne Boleyn and did so secretly on 25 January 1532,
when she was already pregnant with his child. Because of the pregnancy,
divorce with Catherine to avoid bigamy and his child to be born outside
wedlock became urgent. An independent English Church, under the King’s
own leadership, would help formalize divorce and re-marriage.
To accomplish the break with Rome and destroy the power of the
medieval church, the so-called Reformation Parliament played a vital role.
It first met in November 1529 and lasted seven years, enacting 137 statues
of which 32 were of vital importance. In addition, the King also pressured
the church Convocation to accept his demands.
Some of the most important acts and submissions that ensured that
Henry VIII became head of the English Church and separated England
from the Pope’s influence was:

• The Annates Statute of 1532, which empowered the King to abolish

payment to Rome of the first year’s income of all newly installed
bishops; 141
• The Submission of the Clergy of 15 May 1532, in which the clergy
promised not to legislate without royal consent; 142
• The Act of Restraint of Appeals of April 1533, 143 which decreed that
“this realm of England is an empire”, cutting the constitutional cords
holding England to the papacy. A month later an archbishop annulled
the King’s first marriage, and on 1 June Anne was crowned rightful
queen of England;
• The Act of Succession of March 1534 ordered subjects to accept the
King’s marriage to Anne as “undoubted, true, sincere and perfect”; 144
• A second Statute “in Restraint of Annates” severed most of the finan-
cial ties with Rome while in November 1534, the Act of Supremacy
announced that Henry was and always had been “Supreme Head of
the Church of England; 145
• The Act of Treason of December 1534, which made it punishable by
death, to disavow the Act of Supremacy. 146 It was designed to root
141
Parliament of England, Act in Conditional Restraint of Annates (23 Hen. VIII c. 20), 1532
(Annates Statute).
142
The document was adopted in Convocation on 15 May 1532 under intense pressure from
Henry VIII and handed to the King on the following day. It contained a submission to the
King’s demands, promising,
in verbo sacerdotii, here unto your highness, submitting ourselves most humbly to the
same, that we will never from henceforth [enact], put in use, promulge, or execute, any
[new canons or constitutions provincial, or any other new ordinance, provincial or syn-
odal], in our Convocation [or synod] in time coming, which Convocation is, always has
been, and must be, assembled only by your highness’ commandment of writ, unless your
highness by your royal assent shall license us to [assemble our Convocation, and] to
make, promulge, and execute [such constitutions and ordinances as shall be made in] the
same; and thereto give your royal assent and authority.
Henry VIII, The Reign, “Submission of the Clergy 1532” (available on its web site).
143
Parliament of England, An Acte that the Appeles in suche Cases as have ben used to be pur-
sued to the See of Rome shall not be from hensforth had ne used but within this Realme (24
Hen. VIII c. 12), April 1533 (Act of Restraint of Appeals).
144
Parliament of England, Act of Succession (25 Hen. VIII c. 22), March 1534.
145
Parliament of England, Act in Absolute Restraint of Annates (25 Hen. VIII c. 20), November
1534.
146
Parliament of England, Act of Treason (26 Hen. VIII c. 13), December 1534.

out and liquidate dissent, extending the meaning of treason to include

all those who did “maliciously wish, will or desire by words or writ-
ing or by craft imagine” the King’s death or slandered this marriage.
It was eventually used against More. 147
By these acts, the medieval order that church and State were separate
entities with divine law standing higher than human law had been legislat-
ed out of existence. The English church had become a department of the
Tudor State, monasteries were dissolved, and at least 13 percent of the land
of England and Wales were nationalized, making the King much wealthier
and able to finance wars. 148
Although More referred to health issues and his need for devoting
more time to spiritual matters when stepping down as lord chancellor on 16
May 1532, the real reason was his unwillingness to accept that the King
now possessed veto power over ecclesiastical legislation as put in place by
the Submission of the Clergy. In effect, the submission meant that the lead-
ers of the church had given up defending its institutional integrity. In his
explanation to the King, he said that he would “bestow the residue of my
life in mine age now to come, about the provision for my soul in the ser-
vice of God, and to be your Grace’s beadsman and pray for you”. 149
The remaining three years of his life would rather be characterized
by both intensive activity and dramatic incidents. He would not give up his
fight against the King’s efforts to subdue the church, while at the same time
presenting himself as the Kings good servant. 150
More refused to attend the coronation of Anne Boleyn in June 1533,
despite being officially invited and approached by bishops who wanted him
to attend together with them. The refusal surely contributed to determining
the fatal outcome of his struggle, putting a “sword in his enemies’ hands”,
as one scholar put it. 151 Charges were brought against him, including for
complicity with Elizabeth Barton (1506–1534), a nun who had uttered
147
The overview is based on: Patrick Joyce, Ralph Charles Atkins and Others, “United King-
dom: The Break with Rome”, Encyclopædia Britannica (available on its web site).
148
Ibid.
149
Peter Marshall, “The last years”, in Logan (ed.), 2011, p. 116, see above note 71; Curtis,
150
Travis Curtright, “Sir Thomas More and his Opposition to Henry VIII in 1533”, in Curtright
(ed.), 2015, pp. 111, see above note 7.
151
Ibid., p. 112.

prophecies against Henry’s divorce. More was, however, able to prove his
innocence.
In April 1533, More refused the Oath of Succession because it trans-
gressed on the freedom of the English Church. He was imprisoned on 17
April 1534 and tried on 1 July 1535, for denying the King’s title as su-
preme head of the Church of England. In the trial, he was found guilty of
treason despite his denial of what he considered perjured evidence. He was
beheaded five days later.
4.5.1. The Ultimate Test of Integrity
What More endured after his arrest may be termed as his ultimate test of
integrity. Pressure mounted against him because of his unwillingness to
state his acceptance of the King’s new power over the Church – from rep-
resentatives of the King in the forms of threats, interrogations, and traps;
from friends and former colleagues in the form of appeals of giving in; and
from family members who suffered because of his imprisonment and his
loss of income and estate.
The indictment comprised of four counts: 152
1. More had maliciously refused on 7 May 1535, to accept the King’s
supremacy over the Church of England;
2. He had conspired against the King by writing treasonous letters to
bishop John Fisher;
3. He had stirred up sedition by describing the Act of Supremacy as a
two-edged sword, that is, a law that if disobeyed would mean bodily
death, and if obeyed would mean spiritual death;
4. He had “maliciously, traitorously, and diabolically” denied Parlia-
ment’s power to declare the King to be head of the Church. 153
In his defence, which he had to present himself without written notes,
More underlined that he had remained silent on whether the King could be
the head of the English Church. His argument was based on a legal norm
established by English precedent, that “silence is not a crime; in fact, si-
lence means consent”. 154
152
This section is based on Wegemer, 1995, see above note 64.
153
Ibid., p. 210.
154
Ibid., p. 211.

Furthermore, none of his letters to bishop Fisher had touched upon

matters of State, and they did not exist any longer. He had only expressed
himself hypothetically about the Act of Supremacy (Oath of Succession):
“if it was like a two-edged sword forcing a person to make a choice be-
tween physical and spiritual life, then the statute might at a later time be
considered illegitimate”. 155
Refuting the fourth count, he underlined that he had never denied
Parliament’s power to make the King Head of the Church.
At the trial, More faced 15 judges and 12 jurors. The judges included
Chancellor Thomas Audley (1488–1544), Royal Secretary Thomas Crom-
well (1485–1540), and Thomas Howard 3rd Duke of Norfolk (1473–1554),
as well as an uncle, a brother, and the father of Anne Boleyn, the King’s
new wife. They all had strong interests in convicting More.
The jury of twelve was also partial, being put together to ensure the
result wanted by the King. More did not have counsel or was not permitted
a written account of his defence or the indictment.
The court seems to have accepted More’s first three arguments, but
not the fourth; that he had not denied Parliament’s right to make the King
head of the Church. The rest of the trial focused on this count.
The prosecution witness, Solicitor General Richard Rich (1496/97–
1567), stated that More had told him on 12 June 1535 in his cell that Par-
liament did not have authority to make the King head of the Church. More
denied having said anything of the kind, stating that Rich was committing
perjury. He then demonstrated Rich’s lack of credibility as a witness. He
would never have trusted him with secrets “of my conscience touching the
King’s Supremacy”. 156
The jury of the court still found him guilty.
More’s defence was of high legal quality. He was able to demonstrate
that he had done none of the illegal acts he was charged for. He referred to
over 20 years of trusted positions in the State and an untainted reputation
showed the credibility of his character. He demonstrated that the Act of
Parliament, which the indictment against him was grounded on, was in
conflict both with the laws of God and with many other “laws and statutes
of our own land”, including the Magna Carta (1215), which states that “the
155
Ibid.
156
Ibid., p. 213.

English Church shall be free, and shall have its rights undiminished and its
liberties unimpaired”. 157
He knew, however, that even if there were no evidence against him,
this would not be enough to save him. His real opponent was the King, and
the King could not accept anything but surrender.
He did not surrender. Nor did he try to escape. He referred to his
conscience, which was bound by faith and reason to defend the unity of the
church. He stood the test of integrity as a lawyer, providing a solid defence
for himself in line with ethical and professional standards.
He also stood the test of integrity as a person, not making conces-
sions conflicting his personal views, while caring for his family and friends,
expressing gratitude to those who supported him, and forbearance to those
who facilitated the injustice that caused his death.
Few persons could have done so well in terms of upholding his integ-
rity – being ruled by reason and faithful to his professional and personal
convictions – under such pressure, knowing that death was a certain out-
come. It is a remarkable story about skill and courage.
However, in my view, the main lesson to take from More is not that
we shall never give in to pressure when confronted with lethal threats. We
should rather follow More’s own reasoning in his humanistic writings and
learn how courage and other spirited desires should always be governed by
reason. A well-trained and educated reason.
What we should learn from him is how he did what he thought rea-
sonable to avert the King’s measures that would undermine justice and
peace in England and in Christian States in Europe.
According to his view of the world, this could be summarized as be-
ing more faithful to God than to the King. He ended his life by stating that
“I die the King’s faithful servant, but God’s first”. 158
157
England, Magna Carta Libertatum, 15 June 1215, clause 1.
158
Quoted from Peter Marshall, “The last years”, in Logan (ed.), 2011, p. 133, see above note
71. Some scholars doubt the authenticity of the quote, which was reported first by the Paris
News Letter, 4 August, 1535. It is, however, little doubt that it reflects More’s understanding
of his relation to the King; an understanding he had believed the King shared. Cf. the Center
for Thomas More Studies, “About Famous Quotes” (available on its web site).

4.6. More’s Integrity Lessons

When confronted with the fact that almost all bishops and universities had
agreed to the new legislation, More responded that even if that was so,
throughout Christendom many more would support his view. His con-
science was bound to conform to a General Council of Christendom, rather
than to the council of one realm only. In this way he was denying the legal
justification by Parliament of placing the King above the law, epitomized in
Cromwell’s statement: “You’re absolutely right. It must be done by law. It’s
just a matter of finding the right law. Or making one”. 159
More was referring to the conscience as the bedrock of personhood,
and moral and professional integrity. A conscience bound by Christian
principles and by law; not by personal opinion.
In defending the church against interference from the State, he also
defended individual freedom vis-à-vis political power, as Pope John Paul II
has put it. The State should not interfere with the freedom of conscience. 160
In his so-called ‘tower works’, More elaborated on the concepts of
conscience, courage, and grace. 161 It is necessary to gather comfort and
courage, and let it sink into the heart, even though belief in God and grace
also plays a strong role. By right imagining, the abstract argument is trans-
formed into a habitual, fast, and deep-rooted purpose. There is a form of
internalized rhetoric involved, based on study and training.
159
Wegemer, 1995, see above note 64.
160
This is a prevailing view in Peter Berglar, Thomas More: A Lonely Voice Against the Power
of the State, Scepter Publishers, Cleveland, 2009 (First Published in German, 1999), summa-
rized in the foreword as follows: “More generally, what was involved was the breaking
away of society and the state from the medieval political order and the birth of the modern
concept of independent nationhood. But something else also was implicated in these events,
namely, the state’s ambition to impose not just de facto obedience but also active assent.
Now, for the first time in history, simply tolerating the unilateral decisions of an establish-
ment was not enough; explicit approval was demanded, and not only defiance but personal
opinion was subject to persecution, with nonconformity treated as the equivalent of rebellion.
In the cradle of modern Europe, then, we witness a power struggle to preserve the freedom
of the individual in the face of organized power, something not always or necessarily identi-
fied with the state”.
161
The tower works include: Thomas More, A Dialogue of Comfort Against Tribulation, in CW,
vol. 12, 1534, see above note 82; Thomas More, Treatise Upon the Passion, in CW vol. 13,
1534, see above note 82; Thomas More, Treatise on the Blessed Body, in CW, vol. 13, 1535,
see above note 82; Thomas More, De Tristitia Christi, in CW, vol. 14, 1535, see above note
82.

More stood almost alone against immense political pressure, includ-

ing from colleagues, friends and family. He frequently referred to his con-
science in scrutinizing the soundness of his own motives, which were criti-
cized of being over-scrupulous. He navigated a course between the scrupu-
lous conscience and the over-large or elastic conscience.
He also referred to an ‘informed conscience’; shaped by years of
study and reflection. From early one, in his humanist writings More had
raised the fundamental integrity question: How to serve with integrity in a
brutal political environment, full of intrigues, flattering, and dishonesty.
The notion of an ‘informed’ conscience may be interpreted to summarize
that this inner voice of truth is not based on spirited desires for honour or
fame, but rather on faith and reason’s efforts to do as good as possible in
every difficult circumstance.
He was loyal to the Catholic Church and to a settled consensus with-
in that church. He appealed to the views throughout Christendom, that
would support his view on the unity of the church. At the same time, he
acted on his own conscience: “I never intend […] to pin my soul to another
man’s back, not even the best man that I know this day living: for I know
not where he may lead it”. 162 The responsibility must be his alone.
He is very clear that he will not criticize others or condemn their
conscience, but for his own part, he is content “to lose goods, land, and life
too, rather than swear against my conscience”. 163 Many of those who took
the decisions that would end his life were former friends and colleagues. To
them he stated that he looked forward to seeing them again, in another
world.
In conclusion, More exemplified great personal integrity. When he
was pressed for why he would not give up his convictions, when his friends
and colleagues did, he referred to his conscience. But he also defended his
views and rights with legal, theological and philosophical reasoning. He
linked his conscience to religious beliefs and values, and underlined that
conscience has to be trained and developed through study and reflection.
162
Thomas More to his daughter, in prison, August 1534. Quoted from Curtright (ed.), 2015,
beginning of book, before pagination, see above note 7.
163
Gerard B. Wegemer and Stephen W. Smith, A Thomas More Source Book, The Catholic
University of America Press, Washington, DC, 2004, p. 334.

He did not perceive his courage as entirely a gift of grace. It also had
to be nurtured through imagination, internalization of words and prepara-
tions, and to be controlled by reason.
More exemplified integrity as self-integration and consistency
throughout his career. He stood for something, not giving in to pressure, at
the same time always willing to reason and provide his arguments.
More is not an example of ‘civil disobedience’ based on personal
convictions, I would argue. His reasoning and practice during the ultimate
integrity test are instead closer to modern conceptions of professional in-
tegrity. As outlined above, professional integrity is characterized by a mode
of reasoning that calls for the role holder to engage critically and creatively
with the varied and sometimes conflicting demands of professional practice.
More as a ‘first citizen’ was a professional, applying legal and theological
arguments in line with professional standards and practice of his time.
His defence of the unity of the church and church doctrine may be
seen as a reference to authoritative theological practice. In his conflict with
Henry VIII, he makes efforts to give his best reading of that practice.
The same goes for his acting as a lawyer, throughout his career, and
certainly in his own final case. In his defence, he provides what he believes
is the best reading of English jurisprudence in a treason case like his.
It may seem paradoxical, but because More is not a modern in the
sense that he linked his conscience to private opinion, he becomes interest-
ing in terms of professional integrity, which primarily refers to institutional
practice and not to personal opinion.
More favoured reforms, that is, improving the standards and practice
of church, law and politics gradually. Concerning church doctrine and prac-
tice, he referred to the General Council of Christendom as the final arbiter.
He argued that new legislation should be adopted by Parliament,
while judges should have discretion to apply written and unwritten law ac-
cording to circumstances and their own interpretation.
4.7. Integrity in Justice
There are thus several ways in which More is relevant for discussions on
how to strengthen integrity in justice.
For individuals considering the fundamental integrity question –
whether to enter the world of justice professionals – there is great inspira-
tion to take from him. He would tell them that there is a fundamental ques-

tion anyone who considers working for justice institutions have to ask
themselves: Will I be able to honour the promises of my profession, despite
all the pressure, cynicism and temptations I will be exposed to? Will I be
able to hold my spirited desires and appetite (for money, sex, luxury) gov-
erned by reason?
From More’s writings, we know that he believed that an initial de-
termination to live up to integrity standards is not enough. His method was
to continuously train himself in integrity by binding his conscience to the
standards and promises of his profession, and by reflecting on how to mod-
erate the effects of wickedness and evil.
Safeguarding the integrity of the church, justice institutions, and Par-
liament was a central part of More’s efforts as a statesman and lawyer. He
knew well that institutions could be corrupted and manipulated, and how
important leadership were in setting and practising high standards. Well-
functioning institutions could improve societies and human affairs vastly.
They should be protected.
The catalogue of integrity failures listed in Section 4.2.2.1. above
would not be unknown to More. I suspect he would respond that to let un-
due pressure, material temptations, personal relationships, or lack of pro-
fessional and moral convictions lead you away from professional duties
would be the result of the lower parts of your soul being too dominant. The
antidote would be to rebalance your soul and let reason rule. He would
know well that this is easier said than done. To succeed may require hard
work over a long time.
However, if you are going to make advances in confronting tyranny
and injustices that is what is necessary. This is also what an institution such
as a court promises. Maintaining professional integrity as a leader or staff
member of such institutions requires conforming your conscience to the
promises and aims of justice – and follow it.
That seems to me to be the essence of Thomas More’s thoughts and
practice of integrity.

5
______
The Dag Hammarskjöld Legacy and

Integrity in International Civil Service
Hans Corell *
5.1. Dag Hammarskjöld on the International Civil Servant in Law

and in Fact
On 30 May 1961, Dag Hammarskjöld delivered his famous lecture to Con-
gregation at Oxford University entitled 'The International Civil Servant in
Law and in Fact”. 1
The point of departure in this lecture is Dag Hammarskjöld’s refer-
ence to the fact that the international civil service had its genesis in the
League of Nations. 2 He then makes an intriguing analysis of the provisions
that governed the permanent Secretariat of the League of Nations and the
corresponding provisions in the Charter of the United Nations. 3 In his view,
the legacy of the international Secretariat of the League of Nations is
marked in the first paragraph of Article 100 of the Charter of the United
Nations (‘UN’), 4 which reads:
In the performance of their duties the Secretary-General and
the staff shall not seek or receive instructions from any gov-
ernment or from any other authority external to the Organiza-
tion. They shall refrain from any action which might reflect on
*
Hans Corell is the former Under-Secretary-General for Legal Affairs and the Legal Counsel
of the United Nations, Ambassador and Under-Secretary for Legal and Consular Affairs in
the Swedish Ministry for Foreign Affairs, Chief Legal Officer of the Swedish Ministry of
Justice, and a judge in Sweden. The present chapter is based on an oral presentation that the
author gave at the Peace Palace in The Hague on 1 December 2018. There were a few foot-
notes in that presentation. All additional footnotes have been added by the editors.
1
Dag Hammarskjöld, “The International Civil Servant in Law and in Fact”, Oxford, 30 May
1961 (http://www.legal-tools.org/doc/64bcae/).
2
Ibid., sect. II, p. 329.
3
Ibid., pp. 330 ff.
4
Ibid., sect. III, pp. 332–33.

their position as international officials responsible only to the

Organization. 5
However, with respect to the functions and authority of the Secre-
tary-General, the UN Charter “broke new ground”. 6 Here, Dag Hammar-
skjöld refers to Articles 97, 98 and 99: 7
Article 97
The Secretariat shall comprise a Secretary-General and such
staff as the Organization may require. The Secretary-General
shall be appointed by the General Assembly upon the recom-
mendation of the Security Council. He shall be the chief ad-
ministrative officer of the Organization.
Article 98
The Secretary-General shall act in that capacity in all meet-
ings of the General Assembly, of the Security Council, of the
Economic and Social Council, and of the Trusteeship Council,
and shall perform such other functions as are entrusted to him
by these organs. The Secretary-General shall make an annual
report to the General Assembly on the work of the Organiza-
tion.
Article 99
The Secretary-General may bring to the attention of the Secu-
rity Council any matter which in his opinion may threaten the
maintenance of international peace and security.
It is also important to note that, according to Article 101 of the UN
Charter, the staff shall be appointed by the Secretary-General under regula-
tions established by the General Assembly. “The paramount consideration
in the employment of the staff and in the determination of the conditions of
service shall be the necessity of securing the highest standards of efficiency,
competence, and integrity.” 8 Due regard should be paid to the importance
of recruiting the staff on as wide a geographical basis as possible. 9
5
See Charter of the United Nations, 26 June 1945 (http://www.legal-tools.org/doc/6b3cd5/)
(‘UN Charter’).
6
Hammarskjöld, 1961, p. 334, above note 1.
7
See ibid., pp. 334–38.
8
UN Charter, Article 101, see above note 5. See also Hammarskjöld, 1961, p. 337, above note
1.
9
Ibid.

5. The Dag Hammarskjöld Legacy and Integrity in International Civil Service
Dag Hammarskjöld’s conclusions are “that the administration of the

Organization shall be left to the Secretary-General” and that the Secretariat
has “a position, administratively, of full political independence”, which al-
so reflects on international civil servants employed by the Organization. 10
However, Articles 98 and 99 “together open the door to the problem
of neutrality in a sense unknown in the history of the League of Nations”. 11
Dag Hammarskjöld focuses on the fact that the Charter “entitles the Gen-
eral Assembly and the Security Council to entrust the Secretary-General
with tasks involving the execution of political decisions, even when this
would bring him – and with him the Secretariat and its members – into the
arena of possible political conflict”. 12
Of particular importance is that the Secretary-General has “a right to
bring matters to the attention of the Security Council”. 13 This would bring
with it “a broad discretion to conduct inquiries and to engage in informal
diplomatic activity in regard to matters which ‘may threaten the mainte-
nance of international peace and security.’” 14 Dag Hammarskjöld also
makes special reference to the use of the word “integrity” in Article 101. 15
According to Dag Hammarskjöld,
[t]he independence and international character of the Secretar-
iat required not only resistance to national pressures in matters
of personnel, but also—and this was more complex—the in-
dependent implementation of controversial political decisions
in a manner fully consistent with the exclusively international
responsibility of the Secretary-General. 16
In particular, in controversial situations,
the Secretary-General was confronted with mandates of a
highly general character, expressing the bare minimum of
agreement attainable in the organs. That the execution of these
tasks involved the exercise of political judgment by the Secre-
10
Ibid., p. 334.
11
Ibid., p. 335.
12
Ibid.
13
Ibid.
14
Ibid.
15
Ibid., p. 337.
16
Ibid., sect. V, p. 342.

tary-General was, of course, evident to the Member States

themselves. 17
As examples, Dag Hammarskjöld mentions the situations in Pales-
tine, Egypt, Lebanon, Jordan and the Congo during his tenure. 18 He con-
cludes by stating that these examples “demonstrate the extent to which the
Member States have entrusted the Secretary-General with tasks that have
required him to take action which unavoidably may have to run counter to
the views of at least some of these Member States”. 19
5.2. The Conclusions in Dag Hammarskjöld’s Lecture
Focusing on the conclusions in Dag Hammarskjöld’s lecture is of great im-
portance. The best way of conveying his legacy here is through references
to his lecture, in particular to three direct quotes.
First, Dag Hammarskjöld points to “the serious problems” that
arise precisely because it is so often not possible for the or-
gans themselves to resolve the controversial issue faced by the
Secretary-General. When brought down to specific cases in-
volving a clash of interests and positions, the required majori-
ty in the Security Council or General Assembly may not be
available for any particular solution. 20
He then continues:
It might be said that in this situation the Secretary-General
should refuse to implement the resolution, since implementa-
tion would offend one or another group of Member States and
open him to the charge that he has abandoned the political
neutrality and impartiality essential to his office. The only
way to avoid such criticism, it is said, is for the Secretary-
General to refrain from execution of the original resolution
until the organs have decided the issue by the required majori-
ty (and, in the case of the Security Council, with the unani-
mous concurrence of the permanent members) or he, maybe,
has found another way to pass responsibility over on to gov-
ernments. 21
17
Ibid.
18
See ibid., pp. 343 ff.
19
Ibid., p. 344.
20
Ibid., p. 345.
21
Ibid.

However, in his lecture, Dag Hammarskjöld takes a different position,

stating that “[t]he answers seemed clear enough in law”. 22 He concludes
that “the responsibilities of the Secretary-General under the Charter cannot
be laid aside merely because the execution of decisions by him is likely to
be politically controversial. The Secretary-General remains under the obli-
gation to carry out the policies as adopted by the organs”. 23 The “essential
requirement”, according to Dag Hammarskjöld, is that the Secretary-
General “does this on the basis of this exclusively international responsibil-
ity and not in the interest of any particular State or group of States”. 24
Second, he draws attention to the ambiguity of the word “neutrality”
in such a context:
It is obvious from what I have said that the international civil
servant cannot be accused of lack of neutrality simply for tak-
ing a stand on a controversial issue when this is his duty and
cannot be avoided. But there remains a serious intellectual and
moral problem as we move within an area inside which per-
sonal judgement must come into play. Finally, we have to deal
with the question of integrity or with, if you please, a question
of conscience. 25
Against this background, Dag Hammarskjöld maintains that
[t]he international civil servants must keep himself under the
strictest observation. He is not requested to be a neuter in the
sense that he has to have no sympathies or antipathies, that
there are to be no interests which are close to him in his per-
sonal capacity or that he is to have no ideas or ideals that mat-
ter for him. 26
“However”, says Dag Hammarskjöld, “he is requested to be fully
aware of those human reactions and meticulously check himself so that
they are not permitted to influence his actions”. 27 “This is nothing unique”,
he says, and ends with the following question: “Is not every judge profes-
sionally under the same obligation?”. 28
22
Ibid., p. 346.
23
Ibid.
24
Ibid.
25
Ibid., p. 348.
26
Ibid.
27
Ibid.
28
Ibid.

In the final analysis, Dag Hammarskjöld concludes:

If the international civil servant knows himself to be free from
such personal influences in his actions and guided solely by
the common aims and rules laid down for, and by the Organi-
zation he serves and by recognized legal principles, then he
has done his duty, and then he can face the criticism which,
even so, will be unavoidable. As I said, at the final last, this is
a question of integrity, and if integrity in the sense of respect
for law and respect for truth were to drive him into positions
of conflict with this or that interest, then that conflict is a sign
of his neutrality and not of his failure to observe neutrality—
then it is in line, not in conflict, with his duties as an interna-
tional civil servant. 29
This is a powerful message both to the Member States and to the in-
ternational civil service. On another occasion where the same was dis-
cussed, I drew the following conclusions with respect to the United Nations:
The lecture should serve as a reminder both to those who are already em-
ployed and to those who are involved with recruitment. What the United
Nations needs are individuals who can be deemed to observe the standards
required and who do not give in to pressure. If they do not demonstrate the
kind of integrity that Dag Hammarskjöld refers to, they will sooner or later
put the functioning of the Organization at risk. 30
I then went on to say:
What the Organisation needs are persons who can make as-
sessments and decisions in accordance with the clear guide-
lines that follow from Dag Hammarskjöld’s address. This also
means that it is inevitable that the Secretary-General of the
United Nations from time to time is likely to have an argu-
ment with one or more member states, notably the major pow-
ers. This is certainly not something that he or she should be
looking for, but it is the unavoidable result of the Secretary-
General performing the duty that follows with the position.
If this situation should occur, the member states should
not simply jump to conclusions that produce confrontation but
29
Ibid.
30
Hans Corell, “The Need for the Rule of Law in International Affairs – Reflections on Dag
Hammarskjöld’s address at Oxford University on 30 May 1961, ‘The International Civil
Service in Law and in Fact’”, in Henning Melber (ed.), The Ethics of Dag Hammarskjöld,
Dag Hammarskjöld Foundation, Uppsala, 2010, p. 15.

rather step back for a moment and reflect. Is this situation not,
rather, a sign of health – that the Secretary-General is doing
his or her job? On second thoughts, maybe the firm stand of
the Secretary-General is in both the short and long term inter-
est of the member states, including those that may have been
displeased in the particular situation. 31
5.3. Integrity in International Justice

When reading Dag Hammarskjöld’s lecture from the perspective of integri-
ty in international justice, I find the reference to the obligations of every
judge of particular interest. Having served in the judiciary of my own coun-
try Sweden from 1962 to 1973, I recognize this duty immediately. As a
matter of fact, in Sweden there is a tradition that might have inspired Dag
Hammarskjöld in his role as UN Secretary-General, namely the so-called
‘public service tradition’, 32 guided by principles of uprightness, integrity,
impartiality and incorruptibility.
Under all circumstances, the manner in which Dag Hammarskjöld
analyses the concept of integrity in his lecture is a crucial legacy for inter-
national civil servants, and in particular for international judges. This is for
the simple reason that they have to observe an even greater level of inde-
pendence than international civil servants in general. I would therefore
suggest that all persons elected to such functions in international courts be
made aware of the lecture, since Dag Hammarskjöld’s analysis is of direct
relevance in the field of international justice. The dilemma that he analyses
is omnipresent in this field. This is also why he uses the expression “pro-
fessionally” when he refers to the obligation of every judge – it comes with
the profession.
Let us now look at the manner in which the obligations of judges are
described in two court statutes. I have chosen the Statute of the Internation-
al Court of Justice and the Rome Statute of the International Criminal
Court as examples.
According to Article 2 of the Statute of the International Court of
Justice, 33 “[t]he Court shall be composed of a body of independent judges,
elected regardless of their nationality from among persons of high moral
31
Ibid., p. 16.
32
In Swedish: ämbetsmannatraditionen.
33
Statute of the International Court of Justice, 26 June 1945 (http://www.legal-tools.org/doc/
fdd2d2/).

character, who possess the qualifications required in their respective coun-

tries for appointment to the highest judicial offices, or are jurisconsults of
recognized competence in international law”. Article 16(1) prescribes that
“[n]o member of the Court may exercise any political or administrative
function, or engage in any other occupation of a professional nature”. Fur-
thermore, according to Article 17, “[n]o member of the Court may act as
agent, counsel, or advocate in any case”, or “participate in the decision of
any case in which he has previously taken part as agent, counsel, or advo-
cate for one of the parties, or as a member of a national or international
court, or of a commission of enquiry, or in any other capacity”. Article 20
prescribes that “[e]very member of the Court shall, before taking up his
duties, make a solemn declaration in open court that he will exercise his
powers impartially and conscientiously”.
In the Rome Statute of the International Criminal Court, 34 Article
36(3)(a) prescribes that “[t]he judges shall be chosen from among persons
of high moral character, impartiality and integrity who possess the qualifi-
cations required in their respective States for appointment to the highest
judicial offices”.
In a criminal court, one must also look at the prosecutor in this con-
text. According to Article 42(3) of the Rome Statute, “[t]he Prosecutor and
the Deputy Prosecutors shall be persons of high moral character, be highly
competent in and have extensive practical experience in the prosecution or
trial of criminal cases”. With respect to the employment of staff, Article
44(2) prescribes that “the Prosecutor and the Registrar shall ensure the
highest standards of efficiency, competency and integrity”.
As it appears, there are references to “high moral character” in the
Statute of the International Court of Justice and to “integrity” in the Rome
Statute. It is obvious that the standards that Dag Hammarskjöld recognizes
in his lecture must also apply in the field of international justice.
The analysis that Dag Hammarskjöld makes in his lecture, and the
manner in which he applies the standards that he explains, set an extraordi-
nary example as guidance for us in later generations. I often thought of this
when I served as the United Nations Legal Counsel from 1994 to 2004,
three years with Boutros Boutros-Ghali, and seven years with Kofi Annan.
I have also had the privilege of interacting with international judges in dif-
34
Rome Statute of the International Criminal Court, 17 July 1998 (http://www.legal-tools.org/
doc/7b9af9/).

ferent settings over the years since I was involved in the establishment of
the International Criminal Tribunal for the former Yugoslavia, the Interna-
tional Criminal Tribunal for Rwanda, the International Tribunal for the Law
of the Sea, the Special Court for Sierra Leone, and the Extraordinary
Chambers in the Courts of Cambodia. I was also the Secretary-General’s
Representative at the Rome Conference in 1998, and was involved in the
initial stages of the establishment of the International Criminal Court. And,
of course, the International Court of Justice is one of the six main organs of
the United Nations. This means that I have interacted with international
judges in many contexts.
Of particular interest were the discussions with the judges who at-
tended the Brandeis Institutes for International Judges, to which I was in-
vited 35 and asked to deliver a keynote address in June 2002 as the United
Nations Legal Counsel. 36
On that occasion, I made two specific points that can be seen as re-
flecting the legacy of Dag Hammarskjöld. I first pointed out that interna-
tional judges must uphold standards which are set even higher than at the
national level. The reason is that international judges are operating under
the eyes of the whole world. The impression they give and the way in
which they perform their work will directly reflect on the standing of the
institution that they serve.
I then pointed to a classic dilemma at the international level: Quis
custodiet custodes? Who supervises the supervisors? This must always be
present in the minds of judges who serve at the international level. I said
that I could think of no higher calling for a lawyer than to serve as an inter-
national judge. But precisely because it is a high judicial office with limited
ways of establishing accountability, it must be assumed with a humble
mind. What is required is a deep insight that a competent, independent, and
impartial international judiciary is an indispensable element when we are
making our best efforts to establish the rule of law in international relations.
Against this background, it is clear that Dag Hammarskjöld’s analy-
sis of neutrality and integrity in his 1961 lecture is an important part of his
legacy with respect to international justice.
35
See Brandeis University’s web site.
36
Hans Corell, “Ethical Dimensions of International Jurisprudence and Adjudication”, Wal-
tham, Massachusetts, 10 June 2002 (http://www.legal-tools.org/doc/5eb7d4/).

5.4. Dag Hammarskjöld’s Waymarks – Also Named Markings

After Dag Hammarskjöld’s death in September 1961, a manuscript was
found in his New York apartment entitled Vägmärken, in English best
translated as Waymarks. Attached to the manuscript was an undated letter,
addressed to an official in the Swedish Ministry for Foreign Affairs, author-
izing him to publish it “as a sort of ‘White Book’ concerning my negotia-
tions with myself — and with God”. 37 (The manuscript was published in
Sweden in 1963. In 1964, an English translation by W.H. Auden in collabo-
ration with Leif Sjöberg, entitled Markings, was published by Alfred A.
Knopf, New York, and Faber & Faber, London. This translation has been
criticized by some, and I myself have found language and expressions in
the book that I prefer to translate myself. In fact, an interesting guide to the
Waymarks is now available, in which these problems are discussed. 38 With
respect to the quote from the undated letter, reference is made to W.H. Au-
den’s Foreword to Markings. 39)
When my father presented me with Vägmärken in 1963, I understood
that reading and writing poetry was an important source of strength and
inspiration to Dag Hammarskjöld. I came to realize that a few lines of a
poem often make a greater impression on the human mind than the ordi-
nary prose of an essay or a novel.
In this context, I will reflect on Dag Hammarskjöld’s Waymarks from
a lawyer’s perspective. Lawyers have a role of great importance to fulfil
both at the national and international levels. Irrespective of where we dis-
charge our professional duties – be it at the bar; the judiciary; national, re-
gional or local government; business; inter-governmental organizations; or
non-governmental organizations – we have an obligation to engage in es-
tablishing the rule of law and in explaining that the rule of law is an indis-
pensable element in creating a world society where humans can live in
peace and dignity with their human rights protected. It goes without saying
37
Dag Hammarskjöld, Markings, Leif Sjöberg and W.H. Auden (trans.), Faber & Faber, Lon-
don, 1964, p. 7.
38
Bernhard Erling, A Reader’s Guide to Dag Hammarskjöld’s Waymarks, St. Peter, Minnesota,
1999 (updated Introduction in 2009).
39
Reference can also be made to Inge Lønning, “Politics, Morality and Religion – The Legacy
of Dag Hammarskjöld”, and Henning Melber, “Dag Hammarskjöld’s zeitgemäße Betrach-
tungen – Reflections on Inge Lønning’s Dag Hammarskjöld Lecture”, both in Henning Mel-
ber (ed.), The Ethics of Dag Hammarskjöld, Dag Hammarskjöld Foundation, Uppsala, 2010.

that those who serve in the field of international justice have unique obliga-
tions here.
When I first read the Waymarks, one of them caught my attention in
particular. In fact, it became a lodestar to me. (Among other things, I would
quote it when greeting new staff members welcome to the United Nations
Office of Legal Affairs.) This ‘waymark’ reads, in my own translation:
Openness to life grants a swift insight – like a flash of light-
ning – into the life situation of others. A must: to force the
problem from its emotional sting into a clearly conceived in-
tellectual form – and act accordingly. 40
This waymark reflects the fact that we are constantly exposed to var-
ious impressions depending on what we do, where we are, and the circum-
stances of the time. A common experience is hearing in the news and read-
ing in the papers about atrocities that human beings are exposed to, in par-
ticular in connection with armed conflicts. Most people react very strongly
against this, getting upset and condemning the actions by the perpetrators.
Lawyers are no different in this respect. We react in the same manner here
as other people do.
However, there is a tremendous difference if the lawyer all of a sud-
den finds him- or herself involved in a law enforcement process, dealing
with the criminal acts that caused the human suffering. Whether we act in
this context as an investigator, a prosecutor, a defence counsel or a judge,
we must be absolutely certain that we act in a professional manner as de-
scribed in the waymark. We have to force the problem we are confronted
with from its emotional sting into a clearly conceived intellectual form –
and act accordingly.
For me, this became clear already when I served as a law clerk and as
a young judge. A common experience is that one reads in the local press
about crimes committed and gets upset. However, in a matter of time, the
case will appear before the court where one serves, and then one has to act
in a professional manner. I would suggest that this is the typical situation at
the international level, in particular in international criminal courts. The
waymark should therefore serve as an important lodestar here.
Another waymark that caught my attention at an early stage was the
following in Sjöberg and Auden’s translation:
40
Dag Hammarskjöld, Vägmärken, Albert Bonniers Förlag, Stockholm, 1963, p. 16 (the pre-
sent author’s translation).

Never look down to test the ground before taking your next
step: only he who keeps his eye fixed on the far horizon will
find his right road. 41
This waymark came back to me when I observed the work of the
United Nations during my tenure as UN Legal Counsel. Of particular con-
cern to me was the fact that the Security Council often fails to fulfil its
foremost obligation laid down in Article 24 of the UN Charter: the primary
responsibility for the maintenance of international peace and security. The
waymark also tallies with my experiences serving as a sailor in the Swe-
dish merchant marine during 12 months across four summer holidays when
I was a student: the importance of looking to the horizon.
What all this boils down to is the need for statesmanship. What the
world needs is statesmanship – statesmen and -women who realize that we
need an international order based on the rule of law, and who can look to
the future with determination based on this conviction. They must look to
the horizon to understand that they must define the interests of their coun-
tries in a manner that protects the world population, and that international
co-operation must be based on international law.
A third waymark that caught my attention in later years is the follow-
ing, in my own translation:
You will never return.
Another man
will find another city. 42
The message here is true, in particular if one serves in an internation-
al organization. One is constantly confronted with new experiences and
impressions. This is of tremendous importance. In a sense, it is a learning
process that is of great value since it teaches one to view questions with
which one is confronted from different perspectives. It also broadens one’s
knowledge and may cause one to view one’s impressions from back home
in a new light.
Furthermore, the privilege of working with colleagues from other
countries is great. It also means that one should listen carefully to what the-
se colleagues say, not least if they express opinions that are different from
one’s own. In the final analysis, one must of course make one’s own deci-
sion with independence and integrity.
41
Hammarskjöld, 1964, p. 32, see above note 37.
42
Hammarskjöld, 1963, p. 147, see above note 40 (the present author’s translation).

Upon re-reading the book to see whether there were other compo-
nents that could be of interest to lawyers serving in the field of internation-
al justice, I came across the following short components, all in Sjöberg and
Auden’s translation:
Our secret creative will divines its counterpart in others, expe-
riencing its own universality, and this intuition builds a road
towards knowledge of the power which is itself a spark within
us. 43
*
Never, ‘for the sake of peace and quiet’, deny your own expe-
rience or convictions. 44
*
Your position never gives you the right to command. It only
imposes on you the duty of so living your life that others can
receive your orders without being humiliated. 45
*
The only kind of dignity which is genuine is that which is not
diminished by the indifference of others. 46
*
A task becomes a duty from the moment you suspect it to be
an essential part of that integrity which alone entitles a man to
assume responsibility. 47
*
Do what you can — and the task will rest lightly in your hand,
so lightly that you will be able to look forward to the more
difficult tests which may be awaiting you. 48
*
Twice now you have done him an injustice. In spite of the fact
that you were ‘right’ or, more correctly, because you were, in
43
44
Ibid., p. 85.
45
Ibid., p. 96.
46
Ibid., p. 97.
47
Ibid., p. 100.
48
Ibid., p. 109.

your conceit and your stupid pride in your powers you went
stumping on over ground where each step gave him pain. 49
*
Be grateful as your deeds become less and less associated with
your name, as your feet ever more lightly tread the earth. 50
*
You have not done enough, you have never done enough, so
long as it is still possible that you have something of value to
contribute.
This is the answer when you are groaning under what
you consider a burden and an uncertainty prolonged ad infini-
tum. 51
*
Did’st Thou give me this inescapable loneliness so that it
would be easier for me to give Thee all? 52
I leave it to the reader to reflect on these quotes from Dag Hammar-
skjöld’s Waymarks. They should speak for themselves. The main thing is
that we realize that they were produced by an extraordinary personality
with great moral integrity who lost his life in the service of the United Na-
tions. The best way in which we can honour his memory – and also the
memories of others who have paid the ultimate sacrifice in the service of
the Organization – is to contribute to establishing the rule of law at the na-
tional and international levels.
5.5. Conclusion
From the foregoing, it should be clear that the Dag Hammarskjöld legacy is
of great importance when the integrity in international justice is defined.
Both his legal analysis and his Waymarks should serve as lodestars here.
Integrity in international justice is an important component in world gov-
ernance which is facing major challenges in today’s world. Much could be
said about these challenges: genocide, war crimes and crimes against hu-
manity; terrorism and transnational crimes; the need for strengthening hu-
man rights and gender equality; the need to address poverty and disease;
49
Ibid., p. 119.
50
Ibid., p. 126.
51
Ibid., p. 135.
52
Ibid., p. 139.

and the need for environmental protection. As lawyers, we must focus on

the legal prerequisites for achieving this.
Nowadays, I never miss an opportunity to refer to one of the 17 Sus-
tainable Development Goals adopted by the United Nations General As-
sembly in September 2015. 53 In my view, one of these goals is necessary to
attain all the other goals. I refer to Goal 16: “Promote peaceful and inclu-
sive societies for sustainable development, provide access to justice for all
and build effective, accountable and inclusive institutions at all levels”. 54
Among the targets of this goal are “promote the rule of law at the na-
tional and international levels”, and “substantially reduce corruption and
bribery in all its forms”. These are absolutely crucial elements for creating
the legal order that is a prerequisite for achieving all the other goals.
This is where I see a vital role for lawyers irrespective of where we
discharge our professional duties. When we force the problems that we face
here into a clearly conceived intellectual form, the obvious legacy of Dag
Hammarskjöld is: we must act accordingly.
53
Transforming our world: the 2030 Agenda for Sustainable Development, 25 September 2015,
UN Doc. A/RES/70/1 (http://www.legal-tools.org/doc/d52143/).
54
Ibid., p. 25.

6
______
Multicultural Understanding of Integrity in

International Criminal Justice
Juan Carlos Botero *
6.1. Introduction
The International Criminal Court (‘ICC’) has been facing a legitimacy cri-
sis for a long time. 1 Serious allegations of integrity lapses by the ICC’s first
prosecutor, Luis Moreno-Ocampo, 2 have been compounded by a growing
perception among the international criminal justice community, that the
court is missing in action – with judges more concerned about raising their
already plentiful, tax-free salaries in The Hague, than in fulfilling the
*
Juan Carlos Botero (LL.M., S.J.D.) is Associate Professor, Department of Philosophy and
History of Law, Pontificia Universidad Javeriana Law School.
1
The ICC’s legitimacy crisis has multiple dimensions. See, for example, Jessica Hatcher-
Moore, “Is the world’s highest court fit for purpose?”, The Guardian, 5 April 2017 (availa-
ble on its web site). See also James A. Goldston, “Don’t Give Up on the ICC”, in Foreign
Policy, 8 August 2019; Yvonne Dutton, “Bridging the Legitimacy Divide: The International
Criminal Court’s Domestic Perception Challenge”, in Columbia Journal of Transnational
Law, 2017, vol. 56, no. 70; Mandiaye Niang, “Africa and the Legitimacy of the ICC in
Question”, in International Criminal Law Review, 2017, vol. 17, no. 4, pp. 615–624; Cathe-
rine Gegout, “The International Criminal Court: limits, potential and conditions for the pro-
motion of justice and peace”, in Third World Quarterly, 2013, vol. 34, no. 5, pp. 800–818;
Margaret M. deGuzman, “The Global–Local Dilemma and the ICC’s Legitimacy”, in Nien-
ke Grossman, Harlan Cohen, Andreas Follesdal and Geir Ulfstein (eds.), Legitimacy and In-
ternational Courts, Cambridge University Press, 2018, pp. 62–82; Jeff Handmaker, “The
Legitimacy Crisis Within International Criminal Justice and the Importance of Critical, Re-
flexive Learning”, in Bob Jessop and Karim Knio (eds.), The Pedagogy of Economic, Politi-
cal and Social Crises: Dynamics, Construals and Lessons, Routledge, London, 2018,
pp. 189–206; Mihret Getabicha, “Decolonizing the International Criminal Court: Consider-
ing Questions of Bias in the Prosecution of African Leaders”, in Rapoport Center Working
Paper Series, 2018, no. 1; Mathew Lee, “Bolton: International Criminal Court ‘already dead
to us’”, AP News, 11 September 2018; Ramesh Thakur, “The end of the International Crimi-
nal Court?”, The Japan Times, 17 May 2019; Michèle Laborde-Barbanègre and Roxane
Cassehgari, “Reflections on ICC Jurisprudence Regarding the Democratic Republic of the
Congo”, in International Center for Transitional Justice Briefing, 1 September 2014.
2
See, for example, Morten Bergsmo, Wolfgang Kaleck, Sam Muller and William H. Wiley,
“A Prosecutor Falls, Time for the Court to Rise”, FICHL Policy Brief Series No. 86 (2017),
Torkel Opsahl Academic EPublisher, Brussels, 2017 (https://www.toaep.org/pbs-pdf/86-
four-directors/).

court’s high mission. 3 Other chapters in this volume 4 deal with the causes,
operational and legal mechanisms, and potential solutions to the integrity
issues currently facing the ICC. This chapter does not primarily concern
itself with these questions. Instead, it takes a broader perspective on integ-
rity in international criminal justice and considers it from the perspective of
large segments of the world’s population – particularly in the Global
South – whose perception of judicial integrity may diverge from the stand-
ard consensus among the world’s legal elites.
This chapter explores how the principles of integrity and independ-
ence relate to each other in international criminal justice, in the multicul-
tural world of the twenty-first century. In particular, it explores if ‘Western’
notions of integrity and independence that have characterized international
criminal justice since the Nuremberg trials – which emphasize punishment,
retributive justice, and deterrence, 5 as opposed to customary justice’s long-
3
See, for example, Goldston, 2019, see above note 1 (“it is disconcerting that one-third of the
court’s judges are suing for a pay raise plus pension increases and damages that could run
into the millions. Why, when the court has been underperforming and the budget is strained,
are its judges dedicating precious time and energy to increase their already generous com-
pensation—which at around $200,000 tax-free exceeds that of judges on many national
courts?”); Hatcher-Moore, 2017, see above note 1; Thakur, 2019, see above note 1. But see
Elian Peltier and Fatima Faizi, “I.C.C. Allows Afghanistan War Crimes Inquiry to Proceed,
Angering U.S.”, The New York Times, 5 March 2020 (available on its web site); Declan
Walsh and Abid Latif Dahir, “Sudan’s Ex-Ruler May Face War Crimes Trial, Official Says”,
The New York Times, 11 February 2020; and Marlise Simons, “Myanmar Genocide Lawsuit
Is Filed at United Nations Court”, The New York Times, 11 November 2019 (available on its
web site).
4
The conceptual framework for this project on integrity in international criminal justice, is
developed in Morten Bergsmo, “Revisiting Integrity in International Justice”, FICHL Policy
Brief Series No. 93 (2018), Torkel Opsahl Academic EPublisher, Brussels, 2018 (https://
www.toaep.org/pbs-pdf/93-bergsmo/).
5
See, for example, David Wippman, “Atrocities, Deterrence, and the Limits of International
Justice”, in Fordham International Law Journal, vol. 23, no. 2, 1999, p. 474 (“the connec-
tion between international prosecutions and the actual deterrence of future atrocities is at
best a plausible but largely untested assumption. Actual experience with efforts at deterrence
is not encouraging”); Juan Carlos Botero and Mateo Merchán, “Rethinking Peace and Jus-
tice: Lessons from the Colombian Transitional Justice Experience”, Justice in Conflict, 27
April 2020 (https://justiceinconflict.org/2020/04/27/rethinking-peace-and-justice-lessons-
from-the-colombian-transitional-justice-experience/). But see Jennifer Schense and Linda
Carter (eds.), Two Steps Forward, One Step Back: The Deterrent Effect of International
Criminal Tribunals, Torkel Opsahl Academic EPublisher, Brussels, 2017 (https://www.
toaep.org/nas-pdf/1-carter-schense). On empirical evidence of the effectiveness of punish-
ment and deterrence of criminal sanctions in domestic jurisdictions, see Anthony Bottoms
and Andrew von Hirsch, “The Crime-preventive impact of penal sanctions”, in Peter Cane

6. Multicultural Understanding of Integrity in International Criminal Justice
established emphasis on restorative justice and community harmony 6 –

may influence the legitimacy and perception of fairness of international
criminal tribunals among the broader population (not just lawyers and
judges) in developing countries around the world today.
Under the auspices of the United Nations (‘UN’), great efforts have
been made during the past few decades to develop universal standards of
judicial conduct that are applicable to all cultures and legal traditions of the
world. Two milestones in this process of global convergence, are the Basic
Principles on the Independence of the Judiciary, endorsed by the UN Gen-
eral Assembly (‘UNGA’) in its Resolutions 40/32 and 40/146 of 1985, 7 and
the Bangalore Principles of Judicial Conduct, developed by the Judicial
Integrity Group convened by the UN in Vienna in 2000. 8 The Bangalore
Principles were initially adopted in 2001 and revised to their current form
and Herbert Kritzner (eds.), The Oxford Handbook of Empirical Legal Research, Oxford
University Press, Oxford, 2010.
6
The notion of ‘community-harmonizing justice’ is described in Juan Carlos Botero, The
Three Faces of Justice: Legal Traditions, Legal Transplants and Customary Justice in a
Multicultural World, in SSRN Electronic Journal, 2013, on which this chapter draws. Ac-
cording to Zehr and Gohar,
[b]oth retributive and restorative theories of justice acknowledge a basic moral intuition
that a balance has been thrown off by the wrongdoing. Consequently, the victim de-
serves something and the offender owes something. Both approaches argue that there
must be a proportional relationship between the act and the response. They differ, how-
ever, on the currency that will fulfill the obligations and right the balance. Retributive
theory believes that pain will vindicate, but in practice that is often counterproductive
for both victim and offender. Restorative justice theory, on the other hand, argues that
what truly vindicates is acknowledgment of victims’ harms and needs combined with an
active effort to encourage offenders to take responsibility, make right the wrongs and
address the causes of their behavior. By addressing this need for vindication in a positive
way, restorative justice has the potential to affirm both victim and offender and help
them transform their lives.
Howard Zehr and Ali Gohar, The Little Book of Restorative Justice, Good Books, Inter-
course, PA, p. 59.
7
United Nations General Assembly (‘UNGA’), Basic Principles on the Independence of the
Judiciary, UN Doc. A/RES/40/146, 13 December 1985 (‘Basic Principles on the Independ-
ence of the Judiciary’) (https://www.legal-tools.org/doc/rnabsy/).
8
United Nations Office on Drugs and Crime (‘UNODC’), The Bangalore Principles of Judi-
cial Conduct, 26 November 2012 (‘Bangalore Principles’) (https://www.legal-tools.org/doc/
xwake8/).

in 2002. These documents represent two of the most authoritative interna-

tional standards on judicial integrity and independence available today. 9
In the Preface to United Nations Office on Drugs and Crime’s
(‘UNODC’) influential Commentary on the Bangalore Principles of Judi-
cial Conduct, 10 late Judge C.G. Weeramantry, former Vice President of the
International Court of Justice and Chairperson of the Judicial Integrity
Group, declared as follows:
A judiciary of undisputed integrity is the bedrock of democra-
cy and the rule of law. Even when all other protections fail,
the judiciary provides a bulwark to the public against any en-
croachments on rights and freedoms under the law.
These observations apply both domestically—in the con-
text of each nation State—and globally, for the global judici-
ary is seen as one great bastion of the rule of law throughout
the world. Ensuring the integrity of the global judiciary is thus
a task to which much energy, skill and experience must be de-
voted.
This is precisely what the Judicial Group on Strengthen-
ing Judicial Integrity (the Judicial Integrity Group) has sought
to do since 2000. The Group commenced as an informal gath-
ering of chief justices and superior court judges from around
the world who combined their experience and skill with a
sense of dedication to this noble task. Since then, the Group’s
work and achievements have grown to a point where they
have made a significant impact on the global judicial scene.
The principles were first worked out only tentatively, but
have increasingly been accepted over the past few years by the
different sectors of the global judiciary and by international
agencies interested in the integrity of the judicial process. As a
result, the Bangalore Principles of Judicial Conduct are seen
more and more as a document which all judiciaries and legal
systems can accept unreservedly. In short, these principles
give expression to the highest traditions relating to the judi-
cial function as visualized in all cultures and legal systems.
9
Another authoritative standard is the notion of ‘high moral character’ in international crimi-
nal justice, which is explained in Morten Bergsmo’s concept paper for this research project,
see note 4 above. See also Chapter 18 by Bettina Spilker.
10
UNODC, Commentary on the Bangalore Principles of Judicial Conduct, 2007, pp. 1–6.

Reaching agreement on these core principles has been

difficult but the Judicial Integrity Group’s unwavering com-
mitment to achieving a result which would command univer-
sal acceptance has allowed it to surmount the barriers in its
path.
Not only have some States adopted the Bangalore Princi-
ples, but others have even modelled their own principles of
judicial conduct on them. International organizations have al-
so looked on them with favour and endorsed them. The United
Nations Economic and Social Council, in its resolution
2006/23 of 27 July 2006, invited States Members of the Unit-
ed Nations to encourage their judiciaries, in line with their
domestic legal systems, to take into consideration the Banga-
lore Principles when reviewing or developing rules on the pro-
fessional and ethical conduct of the members of the judiciary
[…].
It should be noted that just as all traditional systems of
law insist unanimously on abiding by the highest standards of
judicial rectitude, so do all the great religious systems of the
world. In recognition of this, this Commentary contains, in an
annex, a brief outline of how religious teachings approach the
subject of judicial integrity.
We have, in the Bangalore Principles, an instrument that
is of great potential value, not only for the judiciaries of all
nations, but also for the general public and for all those con-
cerned with laying down a firm foundation for a global judici-
ary of unimpeachable integrity. 11
This chapter has three concrete aims. First, it seeks to address the
question on whether the Bangalore Principles command – as Judge We-
eramantry claims – truly “universal acceptance”, and whether they indeed
“give expression to the highest traditions relating to the judicial function as
visualized in all cultures and legal systems” and “all the great religious sys-
tems of the world”. Second, this chapter explores whether a multicultural
understanding of integrity and independence in international criminal jus-
tice (not the specific standards of the ICC – or any other tribunal), implies a
move towards ‘relativizing’ these standards. Third, the paper explores
whether there are notions of judicial integrity and independence that under-
lie the world’s broader understanding of Justice (with capital ‘J’), regard-
11
Ibid., pp. 5–6 (emphasis added).

less of legal tradition, and how this global perspective may influence the
way we see international criminal justice in the multicultural world of the
twenty-first century. Some tentative implications for the ICC and other in-
ternational courts and tribunals, of adopting a broader perspective of judi-
cial integrity and independence in international criminal justice, are sug-
gested at the end.
At a time when the ICC and the principles for which this institution
stands are under attack from so many fronts, 12 supporters of the principles
of international criminal justice should explore whether the legal profes-
sion’s narrow conceptions of judicial integrity and independence may be
undermining the Court’s legitimacy among the broader public in develop-
ing countries. But please do not misinterpret my words: I do not suggest
that the Rome Statute 13 needs to be amended, which would be impossible
in today’s highly polarized geo-political environment. I am only wondering
whether various ICC constituencies, particularly the Prosecutor, Judges,
and the Assembly of States Parties, might need to read the Statute in a dif-
ferent light – lessening the emphasis on legal process, punishment, retribu-
tive justice, and deterrence, while giving proper attention to customary jus-
tice’s long-established emphasis on restorative justice and community har-
mony or unity. 14 Three key findings of the International Nuremberg Princi-
12
For example, Lee, 2018, see above note 1; Hatcher-Moore, 2017, see above note 1; Thakur,
2019, see above note 1. Cf., Goldston, 2019, see above note 1.
13
doc/e5faa8/).
14
One of the main lessons from international criminal justice experiences over the past 75
years since the Nuremberg trials, is that its understanding of ‘justice’ mainly as retributive
justice, is not shared by large segments of the world’s population. For a comprehensive re-
view of the limits of retributive justice and its negative impact on global acceptance of in-
ternational criminal justice principles in developing countries, see Friederike Mieth, “Ac-
ceptance of International Criminal Justice A Review”, in Susanne Buckley-Zistel, Friederike
Mieth and Marjana Papa (eds.), After Nuremberg: Exploring Multiple Dimensions of the Ac-
ceptance of International Criminal Justice, International Nuremberg Principles Academy,
Nuremberg, 2016. Throughout this chapter, I refer mostly to ‘formal courts’ and ‘customary
justice’ as the two main mechanisms of justice in low and middle-income countries. The dif-
ference between them is sometimes blurred, as in some countries both systems are integrated
(see Botero, 2013, pt. 4, chap. 6, above note 6). I use the term ‘formal court’ to include the
civil and criminal court system inherited from Europe throughout the world, as well as any
other formal, State-governed dispute resolution institution. The term ‘customary justice’ is
employed here to include traditional justice, indigenous and ethnic dispute resolution, com-
munity-based dispute resolution, and in some cases also religious courts. The dividing line is
often blurred, as it is explained in pts. 3 and 4 of Botero, 2013, see above note 6. A major
limitation of this chapter is that Islamic law and courts are mostly outside of its scope. I

ples Academy’s ground-breaking project on Acceptance of International

Criminal Justice in Situation Countries, 15 are:
1. that acceptance of international criminal justice “is a dynamic pro-
cess” and actors’ “activities may elicit different responses from dif-
ferent groups of society”;
2. that “[s]ocieties marked by violence, like all societies, are composed
of many often highly diverse identity groups, amongst which ac-
ceptance of [international criminal justice] can vary”, so “[t]here is
thus not one society which accepts [international criminal justice],
but many groups with very diverse views regarding acceptance”; and
3. that there is a large degree of “[i]nterdependence of different justice
mechanisms”.
Indeed, international criminal justice’s overwhelmingly narrow focus on
retributive justice, to the exclusion of other forms of justice, is one of the
key factors limiting its global acceptance. According to Susanne Buckley-
Zistel, Friederike Mieth and Marjana Papa:
ICJ [international criminal justice] is based on the principle of
retributive justice. In some contexts, alternative forms of
providing justice such as restorative mechanisms are equally
important so that the acceptance of ICJ also depends on the
availability and/or success of other justice mechanisms. 16
What does judicial integrity and independence in international crimi-
nal justice mean for vast segments of the world’s population in the Global
South today? Until recently, there were less than 200 registered lawyers in
the entire country of Liberia; and there are just a few dozen judges in the
entire country of Malawi. 17 In both countries, justice is delivered by thou-
acknowledge that many of the same questions that arise out of the interplay among legal tra-
ditions, legal transplants and customary justice institutions in Africa, Asia and Latin America,
also apply to the interaction between Western and Islamic laws, procedures and courts, in
both Muslim majority and Muslim minority countries. Nonetheless, Sharia’s complexity and
sophistication – as explained in the chapter above by Judge Adel Maged – sets it apart from
other dispute resolution systems existing in the world today. Addressing these questions
properly would require an effort which is currently beyond my limited knowledge of various
Islamic legal traditions.
15
Susanne Buckley-Zistel, Friederike Mieth and Marjana Papa, “Acceptance of International
Criminal Justice in Situation Countries. 10 Key Findings”, International Nuremberg Princi-
ples Academy, Nuremberg, 2017 (available on its web site).
16
Ibid (emphasis added).
17
Botero, 2013, at pt. 4, chap. 7, see above note 6.

sands of ‘chiefs’, or customary justice authorities in accordance with im-

memorial notions of restorative justice, as opposed to the ‘Western’ law of
the colonizers. For the overwhelming majority of people in both coun-
tries – and for several billion people around the world today – the ‘Western’
legal traditions of the civil law and the common law (embraced by the legal
profession in virtually all countries), have very little resemblance to the
people’s understanding of Justice. For most people in the Global South to-
day, Justice is not represented by the European colonizer’s impartial and
independent ‘Lady Justice’ (blindfolded and holding the scales and the
sword), but rather by the ‘African Tree’, the friendly meeting place where
the community comes together to restore the broken bonds. 18 This broader
notion of Justice, I argue, is the light under which the Rome Statute must
be read today, if it is ever to achieve universal legitimacy. Indeed, “[v]ery
often people in affected regions want restorative and distributive justice, as
well as punitive justice”. 19
Legal elites in the Global North and the Global South alike – for ex-
ample, Judge Weeramantry, quoted above 20 – claim that the UN Basic
Principles on the Independence of the Judiciary, 21 the Bangalore Principles
of Judicial Conduct, 22 and the Rome Statute,\ command universal legitima-
cy precisely because they were adopted by representatives from a large
number of countries, from a variety of legal traditions. This claim is only
18
Botero, 2013, p. 3, see above note 6. The ‘African Tree’ justice is essentially a conversation,
which may last for a few minutes or several months. It is a dialogue between the contending
parties and the chief or mediator, whose overall objective is not only (or even mainly) to re-
solve a specific dispute among two parties – as it is among the ‘conflict-solving’ understand-
ing of justice – but more broadly to harmonize the broken bonds within the community. In
some instances, the whole village gets involved in the healing process. The African Tree no-
tion of justice is not exclusive of the African continent. Dispute resolution among indige-
nous communities in other latitudes show similar characteristics. The community-
harmonizing justice of the African Tree is explained in detail in pts. 4 and 5 of Botero, 2013,
see above note 6. I am grateful to Hassan Bubacar Jallow and Murtaza Jaffar, from the In-
ternational Criminal Tribunal for Rwanda, for insightful comments about the nature of dis-
pute resolution in Sub-Saharan Africa.
19
Mieth, 2016, p. 7, see above note 14.
20
UNODC, 2007, pp. 1–6, see above note 10.
21
Basic Principles on the Independence of the Judiciary, see above note 7.
22
Bangalore Principles, see above note 8.

partially true, 23 and it undermines the ICC’s legitimacy among the broader
public in the Global South. 24
From the perspective of large segments of the population in develop-
ing countries today, the ICC’s vision of justice – with its ‘Western’ empha-
sis on legal procedure, punishment, retribution, and deterrence – represent
the law of the European colonizers. 25 In contrast, restorative justice princi-
ples embedded in ancestral customary justice mechanisms in the four cor-
ners of the world, represent a more legitimate way to deal with conflict,
including grave crimes. 26 The ICC’s survival depends on its legitimacy, and
its legitimacy partly depends on its broader appeal to the public in develop-
23
Participation of legal elites from a large number of countries in the drafting of these interna-
tional instruments, confer global legitimacy to these documents among the legal elites of vir-
tually all countries in the world, whose laws are based on the European civil law and com-
mon law traditions. However, this fact does not automatically confer legitimacy of the same
documents across the wider population in the Global South. The low legitimacy of ‘Western’
institutions of justice among broad segments of the population in developing countries has
been extensively documented in the literature throughout Latin America, Sub-Saharan Afri-
ca, and Asia. See, for example, Julio Faundez, “Access to Justice and Indigenous Communi-
ties in Latin America”, in Yash Ghai and Jill Cottrell (eds.), Marginalized Communities and
Access to Justice, Routledge, New York, 2010, p. 83, (“the indigenous communities’ views
about legal institutions bear little resemblance to liberal views about law. Instead of seeing
them as friendly institutions that empower and liberate individuals, they regard them as the
cause and symbol of their longstanding economic and political oppression”); also pp. 93–94.
Hannah Irfan, Honor Related Violence Against Women in Pakistan, American Bar Associa-
tion, 2008, p. 19 (in Pakistan “one of the major reasons that women victims are reluctant to
take action against violence through the courts is that they fear the system of which they have
no knowledge. The inadequacy of knowledge and information about the legal processes
made the thought of even going to court frightening”); Deborah H. Isser, Stephen C. Lub-
kemann, and Saah N’Tow, Looking for Justice, Liberian experiences with and perceptions of
local justice options, United States Institute of Peace, Washington, DC, 2009, p. 3 (“Most
Liberians would still be unsatisfied with the justice meted out by the formal system, even if
it were able to deliver on the basics”).
24
The legitimacy crisis of the ICC among the broad public in developing countries is com-
pounded by a variety of factors, including the court’s many structural and operational limita-
tions, see above note 1.
25
Faundez, 2010, see above note 23; Irfan, 2008, see above note 23; Stuart Banner, How the
Indians Lost Their Lands, Harvard University Press, 2007; Lidsay Robertson, Conquest by
Law, at Preface, Oxford University Press, 2005; N. Bruce Duthu, American Indians and the
Law, Penguin, New York, 2008; Stephen Breyer, “'For Their Own Good”: The Cherokees,
the Supreme Court, and the Early History of American Conscience”, The New Republic, 4
December 2008.
26
A comprehensive review of alternative mechanisms available to deal with mass atrocities, is
available at Open Society Justice Initiative, Options for Justice: A Handbook for Designing
Accountability Mechanisms for Grave Crimes, Open Society Foundations, 2018.

ing countries. This legitimacy, in turn, could be greatly enhanced by rein-

terpreting the Rome Statute (and the international criminal justice system
more broadly), in light of ancestral restorative justice principles. This chap-
ter suggests a few ways in which this may be advanced.
Tradition – Historical Divergence
The shape and character of the laws and institutions of all countries are
closely tied to their history. To some extent, they respond to the cultural,
philosophical and religious foundation of society. 27 However, in many
countries, a number of laws and institutions do not stem from local culture;
they are simply legal ‘transplants’ copied or received from ‘mother’ coun-
tries. 28
Comparativists have long proposed the idea that the laws of all coun-
tries may be aggregated into a handful of legal families. 29 Similar institu-
tional designs within these families have been said to stem from shared le-
gal traditions. As late Merryman defined it:
A legal tradition, as the term implies, is not a set of rules of
law about contracts, corporations, and crimes, although such
rules will almost always be in some sense a reflection of that
tradition. Rather it is a set of deeply rooted, historically condi-
tioned attitudes about the nature of the law, about the role of
law in the society and the polity, about the proper organization
and operation of a legal system, and about the way law is or
should be made, applied, studied, perfected, and taught. The
legal tradition relates the legal system to the culture of which
27
See generally, for example, Hans Kelsen, What is Justice?, University of California Press,
Berkeley, 1957.
28
See generally, for example, Alan Watson, Legal Transplants: An Approach to Comparative
Law, University of Virginia Press, Charlottesville, 1974; Michele Graziadei, “Comparative
Law as the Study of Transplants and Receptions”, in Mathias Reimann and Reinhard Zim-
mermann (eds.), The Oxford Handbook of Comparative Law, Oxford University Press, 2006.
29
See, for example, Rene David and John Brierley, Major Legal Systems in the World Today:
An introduction to the Comparative study of Law, The Free Press, New York, 1978; John
Dawson, The Oracles of the Law, William S. Hein, New York; Rudolph Schlesinger, Ugo
Mattei, Teemu Ruskola and Antonio Gidi, Comparative Law, Case- Text- Materials, The
Foundation Press, New York, 1988; Konrad Zweigert and Hein Kotz, Introduction to Com-
parative Law (vol. I – The Framework/vol. II – The Institutions of Private Law), Clarendon
Press, Oxford, 1987; John Henry Merryman, The Civil Law Tradition. An Introduction to the
Legal Systems of Western Europe and Latin America, Stanford University Press, California,
1985.

it is a partial expression. It puts the legal system into cultural

perspective. 30
This chapter briefly traces the historical context of the notions of ju-
dicial integrity and independence – particularly in the two most prevalent
of these traditions, the civil law and the common law 31 – we open up a con-
ceptual background to the analysis of integrity which may be useful.
Most of the judicial institutions that we know today can trace back
their origins in one way or another to Rome. 32 The Roman Empire enjoyed
a highly developed legal system where written law evolved over centuries
and was codified into systematic and comprehensive bodies of law. There
was a centralized and hierarchical apparatus of courts that contributed to
unifying the system. The application of the law was guided by sophisticat-
ed legal principles and procedures, developed by professional judges.
With the fall of the Roman Empire, the early Middle Ages were
characterized by the fractionalization of the Roman legal system into mul-
tiple local jurisdictions. Justice was largely a matter of basic rules mixed
with superstition and religion, which were erratically created and enforced
by local lords. 33 During the late Middle Ages, the old customs of the Ger-
manic tribes clashed with the rediscovered Roman law, and this uneasy mix
evolved over the centuries into the various modern legal families. Italy re-
mained closely attached to the Roman law. The French legal system result-
ed from the Napoleonic combination of Roman and Germanic customary
law, where the later element predominated. Germany rediscovered and
adopted the Roman law in the process called ‘The Reception’. In England,
the Roman influence was largely diluted over time, and the law developed
mainly from Germanic and feudal customs; from the twelfth century, the
30
Merryman, 1985, p. 2, see above note 29 (emphasis added).
31
Ibid., p. 1: “There are three highly influential legal traditions in the contemporary world:
civil law, common-law, and socialist law”. With the fall of the Soviet Union, the third one
lost significance. On Islamic law, see above note 24.
32
“It is no exaggeration to say that, next to the Bible, no book has left a deeper mark upon the
history of mankind than the Corpus Iuris Civilis”, Justinian, “General Introduction”, in The
Digest of Roman Law, Penguin Classics, reprint edition, 1979, p. 8.
33
See generally, for example, William Sidney Gibson, On some Ancient Modes of Trial, espe-
cially the Ordeals of Water, Fire and other Judicia Dei: Communicated to the Society of An-
tiquaries., Nichols & Son, London, 1848.

common law was created by English royal courts and evolved gradually
until present times. 34
Through the process of European conquest and colonization, these
‘Western’ legal traditions were imposed by might of the sword on virtually
all peoples of the world. When European colonization ended in the nine-
teenth and twentieth centuries, ‘Western’ legal traditions were maintained
in all countries by local legal elites. Yet, vast segments of the population in
developing countries continued to perceive these ‘Western’ laws and pro-
cedures with contempt. The ‘original sin’ of violent conquest and coloniza-
tion, which underlies the ‘Western’ institutions of Justice, continues to un-
dermine the ICC’s legitimacy in the Global South today. 35
Tradition in Historical Perspective
What are the implications of the historical evolution of justice in England
and continental Europe for current notions of judicial integrity and impar-
tiality? Renowned comparativists – Caenegem, Damaška, David, Dawson,
Glendon, Merryman, Schlesinger, Zweigert and Kotz – differ on a number
of issues related to the divide between civil law and common law, but they
all tend to agree on the fact that specific historical developments led to a
rather distinct view of the role of the judge in society. 36
34
Although some Roman elements continued to influence procedure well into the nineteenth
century. For example, R.C. van Caenegem, “History of European Civil Procedure”, in Mau-
ro Cappelletti (ed.), International Encyclopedia of Comparative Law: Volume XVI, Civil
Procedure, 1982, p. 15. See also, Mary Ann Glendon, Michael Gordon and Christopher
Osakwe, Comparative Legal Traditions, West Publishing, St. Paul, 1994; R.C. van Cae-
negem, European Law in the Past and the Future: Unity and Diversity over Two Millennia,
Cambridge University Press, 2002.
35
The legitimacy gap of ‘Western’ justice institutions between legal elites and the broad public
in developing countries, is not only documented in the literature (see, for example, above
note 23), but it is also supported by the author’s personal experience measuring people’s ex-
periences and perceptions of justice in over one hundred countries over the past two decades,
including hundreds of thousands of household surveys in over 300 cities around the world,
and hundreds of conversations and interviews with formal and customary justice authorities
from dozens of countries throughout Latin America, Sub-Saharan Africa and Asia. Botero,
2013, see above note 6. On the legitimacy crisis of the International Criminal Court, see
above note 1.
36
Juan Carlos Botero, “The delivery of justice in middle-income countries”, in Randall
Peerenboom and Tom Ginsburg (eds.), Law and Development of Middle-Income Countries,
Cambridge University Press, 2014, p. 196.

As Carl Goodman reminds us, “because the King of England utilized

the legal system and his Royal Courts and traveling judges to extend his
rule throughout England it was important that the populous view the Royal
Courts as fair and honest”. 37 In the United States ‘justice’ means ‘fair play’,
the judicial process is a contest, and the judge is an umpire. The function of
the American judge is to guarantee an efficient and fair process. In this
context, judicial integrity means impartiality.
In contrast, in civil law countries, the judge is the good old Roman
pater familias, who has a say and becomes involved in every dispute within
the family. The function of the civil law judge is to ensure a fair outcome. 38
Moreover, in other civil law countries that have millenary autochthonous
traditions, justice is represented by the Buddha of Compassion. In Japan,
for example, the “criminal law system has harmony as its goal”. 39 In this
civil law variant, the function of the judge is to restore social harmony.
More broadly, the historical function of the civil law judge is to implement
State policy. 40
These diverging attitudes, which may be traced back to the twelfth
century, 41 partly stem from the revolutionary France’s deeply rooted con-
cern with the ‘tyranny of justice’. For the revolutionary France, ‘justice’ is
the tool of the tyrant, a mechanism of oppression. In eighteenth-century
France, the judge shall be “no more than the mouth that pronounces the
words of the law”. 42 Real justice can only be achieved through strict adher-
ence to the people’s law – not by the aristocratic judges’ free interpretation
37
Carl Goodman, The Rule of Law in Japan, Kluwer Law International, the Netherlands, 2008,
p. 9.
38
See, for example, Benjamin Kaplan, “Civil Procedure—Reflections on the Comparison of
Systems”, in Buffalo Law Review, 1960, p. 431 (US system “exploits the free-wheeling en-
ergies of counsel and places them in adversary confrontation before a detached judge”;
“German system puts its trust in a judge of paternalistic bent acting in cooperation with
counsel of somewhat muted adversary zeal”).
39
Goodman, 2008, p. 504, see above note 37.
40
Mirjan Damaška, The Faces of Justice and State Authority. A Comparative Approach to the
Legal Process, Yale University Press, New Haven, 1986.
41
See generally, Caenegem, 2002, see above note 34; Caenegem, 1982, see above note 34;
Damaška, 1986, see above note 40.
42
Montesquieu, The Spirit of Laws, 1748 (“But as we have already observed, the national
judges are no more than the mouth that pronounces the words of the law, mere passive be-
ings, incapable of moderating either its force or rigor”).

thereof. Thus, a judge with integrity is a judge that follows the law. In this
context, judicial integrity means the strict application of the law.
Do these notions of judicial integrity correspond to the currently pre-
vailing notion of justice outside of the metropolis (Europe and North Amer-
ica)? For historical reasons, ‘Western’ adjudication has placed particular
emphasis on two relations: a dispute between two individuals (as in thir-
teenth century England), and the relationship between one individual and
the State (as in Imperial Rome or the Kingdom of France). In contrast, cus-
tomary justice throughout the Global South focuses on the multiple rela-
tions that are co-existing and evolving over time within a specific commu-
nity over time.
6.4. The Bangalore Principles of Judicial Conduct: A ‘Universal’
Understanding of Integrity and Independence in Justice
In July 2006, the UN Economic and Social Council adopted a resolution
that “[e]mphasizes that the Bangalore Principles of Judicial Conduct repre-
sent a further development and are complementary to the Basic Principles
on the Independence of the Judiciary, endorsed by UNGA in its resolutions
40/32 and 40/146”. 43 Taken together, these two documents – the UNGA’s
Basic Principles 44 and the Bangalore Principles of 2001, as revised in
2002 45 – represent two of the most authoritative international standards on
the notions of integrity and independence of justice available today.
The Bangalore Principles recognize integrity and independence of
justice as follows:
Value 1. Independence.
Principle: Judicial independence is a prerequisite to the rule of
law and a fundamental guarantee of a fair trial. A judge shall
therefore uphold and exemplify judicial independence in both
its individual and institutional aspects.
Application:
1.1. A judge shall exercise the judicial function independently
on the basis of the judge’s assessment of the facts and in
accordance with a conscientious understanding of the law,
43
United Nations Economic and Social Council, Strengthening basic principles of judicial
conduct, 27 July 2006, ECOSOC 2006/23 (https://www.legal-tools.org/doc/yiyqyy/).
44
Basic Principles on the Independence of the Judiciary, see above note 7.
45
The Bangalore Principles, see above note 8.

free of any extraneous influences, inducements, pressures,

threats or interference, direct or indirect, from any quar-
ter or for any reason.
1.2. A judge shall be independent in relation to society in
general and in relation to the particular parties to a dis-
pute that the judge has to adjudicate.
1.3. A judge shall not only be free from inappropriate connec-
tions with, and influence by, the executive and legislative
branches of government, but must also appear to a rea-
sonable observer to be free therefrom.
1.4. In performing judicial duties, a judge shall be independ-
ent of judicial colleagues in respect of decisions that the
judge is obliged to make independently.
1.5. A judge shall encourage and uphold safeguards for the
discharge of judicial duties in order to maintain and en-
hance the institutional and operational independence of
the judiciary.
1.6. A judge shall exhibit and promote high standards of judi-
cial conduct in order to reinforce public confidence in the
judiciary, which is fundamental to the maintenance of ju-
dicial independence.
Value 3. Integrity.
Principle: Integrity is essential to the proper discharge of the
judicial office.
Application:
3.1. A judge shall ensure that his or her conduct is above re-
proach in the view of a reasonable observer.
3.2. The behaviour and conduct of a judge must reaffirm the
people’s faith in the integrity of the judiciary. Justice
must not merely be done but must also be seen to be
done.
The Bangalore Principles also recognize three closely related con-
cepts, impartiality, propriety and equality, as essential values that define the
conduct of judicial officers under international standards. These principles
are as follows:
Value 2: IMPARTIALITY.

Principle: Impartiality is essential to the proper discharge of

the judicial office. It applies not only to the decision itself but
also to the process by which the decision is made.
Value 4: PROPRIETY.
Principle: Propriety, and the appearance of propriety, are es-
sential to the performance of all of the activities of a judge.
Value 5: EQUALITY.
Principle: Ensuring equality of treatment to all before the
courts is essential to the due performance of the judicial office.
Finally, the Bangalore Principles of Judicial Conduct recognize a
sixth value, competence and diligence, as follows:
Value 6: COMPETENCE AND DILIGENCE.
Principle: Competence and diligence are prerequisites to the
due performance of judicial office.
A central question of this chapter, as stated in the introduction, is
whether the Bangalore Principles command truly “universal acceptance”,
and whether they indeed “give expression to the highest traditions relating
to the judicial function as visualized in all cultures and legal systems” and
“all the great religious systems of the world”.
The detailed account of the process of creation of these principles, 46
suggests a bias in favour of the principles of judicial integrity and inde-
pendence of the common law tradition, by virtue of the overwhelmingly
majoritarian membership of judges from this tradition in the drafting group,
and the predominantly common law nature of the national codes used as
reference material in the drafting process. 47 As stated above, this common
law emphasis implies an understanding of judicial integrity primarily as a
function of judicial impartiality.
It is also clear that the drafting group made great efforts in 2002 to
socialize and integrate principles pertaining to the civil law tradition into
these ‘universal’ standards. 48 Thus, the civil law’s flavour of judicial integ-
46
UNODC, 2007, pp. 1–6, see above note 10.
47
Ibid., A detailed list of National Codes that were consulted is included in the Commentary.
48
There was significant agreement among the common and civil law judges who participated
in the meeting concerning core values, and some disagreement on the scheme and order in
which these values ought to be placed. For instance: “[…] (c) The statement in the preamble
of the Bangalore Draft that the “real source of judicial power is public acceptance of the
moral authority and integrity of the judiciary” was questioned. It was argued that the “real

rity as a function of strict adherence to the law, may also be observed in

the same principles.
In sum, it seems fair to argue that the Bangalore Principles “give ex-
pression to the highest traditions relating to the judicial function as visual-
ized [by judges and lawyers] in all [‘Western’] legal systems”. Whether
these principles developed by high court justices from a variety of coun-
tries actually reflect the ‘cultures’ and ‘religions’ of all peoples of the world,
remains to be seen.
6.5. A Multicultural Understanding of Integrity and Independence as
Viewed by Citizens
Ordinary people in low and middle-income countries generally know two
faces of justice, the so-called ‘Wig and Gown’ justice of the colonizers, and
the customary justice system that predates the arrival of the Europeans.
These two faces of justice are increasingly misaligned with the changing
reality of a globalized yet multicultural world.
There are profound differences among societies on fundamental so-
cial values, which have impacted the role assigned to law and justice in
them. 49 Yet, regardless of these cultural differences about the notion of jus-
tice1, the underlying truth is that all peoples need accessible and effective
dispute settlement systems:
source” was the Constitution and that placing too great an emphasis on the ultimate depend-
ence of the judicial power upon general acceptance could, in some circumstances, be dan-
gerous”. UNODC, 2007, pp. 6–10, see above note 10.
49
Huntington – whose work has spurred controversy – describes these differences between
two cultures (China and the USA), as follows:
At the broadest level the Confucian ethos pervading many Asian societies stressed the
values of authority, hierarchy, the subordination of individual rights and interests, the
importance of consensus, the avoidance of confrontation, ‘saving face,’ and, in general,
the supremacy of the state over society and of society over the individual. In addition,
Asians tended to think of the evolution of their societies in terms of centuries and mil-
lennia and to give priority to maximizing long-term gains. These attitudes contrasted
with the primacy in American beliefs of liberty, equality, democracy, and individualism,
and the American propensity to distrust government, oppose authority, promote checks
and balances, encourage competition, sanctify human rights, and to forget the past, ig-
nore the future, and focus on maximizing immediate gains. The sources of conflict are in
fundamental differences in society and culture.
Samuel P. Huntington, The Clash of Civilizations and the Remaking of the World Order,
Simon & Schuster, 1996, p. 225.

In old ages, people used customary justice systems to resolve

their disputes, ranging from the Cheyenne “conference of trib-
al chiefs”, to the Afghan Jirgas, to the Liberian chiefdoms, to
the Amazonian shamans. While many of these systems con-
tinue to operate today, the European colonization process of
the past few centuries brought with it a new dispute-resolution
system to all corners of the planet. In some places, the old
forms were completely abandoned while, in others, a dual ar-
rangement emerged. Parallel systems of dispute resolution co-
existed and interacted in most countries. In some places cus-
tomary justice was formally and hierarchically integrated into
the formal (European) judicial machinery, while in others they
remained in operation de facto, mostly ignored or tolerated by
the formal courts. For decades (in Africa and parts of Asia) or
centuries (in Latin America and other parts of Asia), the for-
mal courts were perceived mostly as instruments for resolving
disputes among the descendants of European colonizers, the
global and local business community, and the local elites. By
design, in most colonies and pseudocolonies around the world
formal courts were not intended to be widely accessible to or-
dinary folk. 50
Formal courts were not seen and embraced by the masses as their
cherished property, as “a progressive force on the side of the individual
against the abuse of power by the ruler”. 51 However, this was not necessari-
ly a problem, because people still had access to their customary justice sys-
tems.
Several new factors have emerged in the last few decades,
starting with the end of the Cold War, which pose a serious
challenge to the existing arrangements. These factors include,
among others, increasing globalization and integration of
markets; growing migration and urbanization; exponential ex-
pansion of access to communication technologies; unprece-
50
Botero, 2014, p. 196, see above note 36.
51
“In the United States and England […] there was a different kind of judicial tradition, one in
which judges had often been a progressive force on the side of the individual against the
abuse of power by the ruler”, see Merryman, 1985, p. 16, see above note 29. In contrast, in
colonies throughout the world “the indigenous communities’ views about legal institutions
bear little resemblance to liberal views about law. Instead of seeing them as friendly institu-
tions that empower and liberate individuals, they regard them as the cause and symbol of
their longstanding economic and political oppression”, see Faundez, 2010, pp. 83, 93-94, see
above note 23.

dented universal access to information for all segments of the

population; growing cultural self-assertiveness; and growing
awareness among marginalized populations about their own
rights (and decreasing tolerance to abuses and exclusion). 52
For several decades, we have been witnessing a revival of deeply-
rooted cultural traditions in various parts of the world. For instance,
“Shamanism is becoming more popular in South Korea in recent years, af-
ter being dismissed as ‘superstition’ and ‘delusion’ by past military gov-
ernments”, 53 which often go hand-in-hand with increasingly anti-elitist sen-
timents. 54
The impact of these changes for the machinery of justice is
clear: the “Wig and Gown” justice of the colonizers and their
heirs is no longer acceptable to an increasingly cultural asser-
tive and well informed population, at the same time that the
[customary] justice of the local chiefs is no longer effective in
a globalized world. 55
Ghana’s formal courts are as nicely adapted to the needs of ordinary
citizens, as the wig and gown of Madam Chief Justice are adapted to the
weather conditions of this beautiful tropical country. There is a fundamen-
tal disconnect between the elegant wig and gown of Madam Chief Justice
and the hot, humid, tropical weather of Ghana. The laws that go with the
wig are no different. The system is broken.
For most native-Americans in the United States – the original indig-
enous communities – the European institutions of law and justice have
generally been perceived for centuries as a foreign imposition. 56 The atti-
52
53
“Shamans’ newfound popularity in South Korea”, BBC News, 29 July 2012 (available on its
web site).
54
See, for example, Simon Kuper, “The revenge of the middle-class anti-elitist: Why the com-
fortably well-off voted for Trump, Brexit and Italy’s Lega”, Financial Times Magazine, 13
February 2020 (available on its web site).
55
56
See, for example, Banner, 2007, p. 1, see above note 25 (“The Indians were really conquered
by force […], but Americans and their British colonial predecessors papered over their con-
quest with these documents [treaties] to make the process look proper and legal”); Robert-
son, 2005, at Preface, p. IX, see above note 25 (“Over a succession of generations, Europe-
ans devised rules intended to justify the dispossession and subjugation of the native peoples
of the Western Hemisphere”); Duthu, 2008, p. xxii, see above note 25 (“on June 9, 1855,
Kamiakin rose last among his fellow tribal leaders, made his mark on the treaty and returned
to his seat with his lips ‘covered with blood, having bitten them with suppressed rage’”);

tudes of native-Americans about European law in the United States are

similar to those of vast segments of the population in most countries in Af-
rica, Asia and Latin America, where European laws and institutions were
transplanted by the colonizers. 57 As Hannah Irfan tells us, in Pakistan, “one
of the major reasons that women victims are reluctant to take action against
violence through the courts is that they fear the system of which they have
no knowledge. The inadequacy of knowledge and information about the
legal processes made the thought of even going to court frightening”. 58
More often than not, from the point of view of the common citizen,
legal institutions in low- and middle-income countries throughout the
world feel like a foreign intrusion. Transplant institutions, laws and proce-
dures were often kept for decades or centuries after independence because
they helped to maintain stability during tumultuous times. Elites in those
countries tended to support the foreign transplants as they contributed to
sustain the status quo, which favoured the interests of the heirs of the origi-
nal colonizers once formal colonization ended – for instance, those of
white creoles 59 in Latin America, Afrikaans in South Africa, and Americo-
Liberians in Liberia. But it shall not escape the reader that for the vast ma-
jority of the population in most low and middle-income countries, trans-
plant institutions may not reflect the idiosyncratic aspirations and needs of
the people.
Merryman was wrong; the legal tradition does not “relate the legal
system [of a particular country] to the culture of which it is a partial ex-
pression”. 60 Outside of the ‘metropolis’, it relates the legal system only to
the culture and needs of the colonizers. For vast segments of the population
in developing countries, the legal system often remains a distant and even
frightening ‘transplant’, 61 not an integral part of their culture. Legal and
Breyer, 2000, p. 30, see above note 25 (“In 1836, the United States and the State of Georgia
forced the Cherokee Indian tribe to leave its home in Georgia and to move to the West. The
Tribe did not want to move. It believed it had a legal right to stay […] [The outcome of this
engagement is a] tragic story in the history of the Cherokee Tribe”).
57
Faundez, 2010, see above note 23.
58
Irfan, 2008, p. 19, see above note 23 (emphasis added).
59
French, Spanish and Portuguese descendants, Encyclopaedia Britannica on-line. “Creole,
Spanish Criollo, French Créole, originally, any person of European (mostly French or Span-
ish) or African descent born in the West Indies or parts of French or Spanish America (and
thus naturalized in those regions rather than in the parents’ home country)”.
60
Merryman, 1985, p. 2, see above note 29 (emphasis added).
61
Botero, 2014, see above note 36.

procedural restrictions in developing countries are as much safeguards of

Justice as they are instruments of monopoly power and exclusion. 62
In most developing countries, the cost of litigation (court and attor-
ney fees) for even the most basic disputes is significantly higher than the
monthly minimum wage. Local elites justify this on the ‘sanctity of proce-
dure;’ as Gandasubrata declared, “in connection with the nature of the judi-
cial process itself and considering the formal, punctual and rather compli-
cated manners and usages upheld by the courts according to the Law on
Procedure, it could be said that correct judgment cannot be performed in a
short time”. 63 Of course, lengthier and more complex proceedings often
mean more lucrative attorney fees. Moreover, they produce a very steep
barrier to access the market for potential competitors (including the liti-
gants themselves, if they consider handling their own disputes without the
assistance of a lawyer), which may guarantee a stream of revenue in the
long run. From the users’ perspective, lengthy and cumbersome proceed-
ings translate into judicial inefficiency, which is generally perceived as a
form of corruption or lack of integrity.
6.6. Judicial Integrity from the People’s Perspective: Implications for
the ICC
The negative effect of ‘foreign impositions’ on the legitimacy of justice
among the people, is often compounded in the application of international
criminal justice within the context of societies that have undergone severe
conflict and mass atrocities:
The feelings of ‘imposition’ seem particularly critical in con-
texts where international justice mechanisms threaten to jeop-
ardise peace in a certain region. Two much-debated situations
in this regard are Northern Uganda and the Darfur region,
both investigated by the ICC. In these instances, the ICC in-
vestigations were instigated by perceived outside actors. From
the perspective of Ugandans living in the north of the country,
the referral by President Museveni of the situation to the ICC
can be seen very much as an ‘outside’ intervention, as was the
UN Security Council decision to open investigations for the
Darfur region. It has been claimed that when victims of war
62
As explained in pt. 3 of chap. 4 of Botero, 2013, see above note 6.
63
Purwoto Gandasubrata, “Indonesia, Administration of Justice: Procedural Reforms on Court
Congestion”, in Purificación Valera-Quisumbing (ed.), Asian Comparative Law Series, 1980,
vol. 2, p. 7 (emphasis added).

crimes and other affected groups feel that their immediate

need for peace is not mirrored by actions of an international
body such as the ICC, the latter will not be appreciated.
When international justice feels imposed, a typical reac-
tion is to question whether the crimes should be dealt with at
an international level rather than domestically, which can ul-
timately affect acceptance of the respective institution which
becomes involved.
Such debates can be seen in some of the recent cases that
have experienced ICC engagement, such as Côte d’Ivoire,
Kenya, and Mali. 64
Popular dissatisfaction with domestic formal (‘Western’) institutions
of justice in virtually all countries across the Global South, 65 has grave im-
plications for the local buy-in (legitimacy) of international courts and tri-
bunals, including the ICC:
People’s previous experiences with domestic judicial systems
influence the acceptance of international justice. In many re-
gions where international justice operates, people are faced
with inadequate and often corrupt domestic justice systems. In
Sierra Leone, for example, the author found that citizens’ low
interest in the Special Court for Sierra Leone was partly root-
ed in the low expectations in judiciary procedures in general,
which stemmed from their negative experiences with both the
formal and customary justice systems in the country. These
two justice systems coexist, but are perceived equally corrupt
and unfair. Similarly, a 2010 study in Kenya on attitudes to-
64
Mieth, 2017, p. 4, see above note 14 (citations omitted). Similarly, according to Laborde-
Barbanègre and Cassehgari, 2014, see above note 1, the ICC’s
results could be interpreted as disappointing when compared with the amount of re-
sources invested in the process. In particular, the proceedings were slow, complicated,
and expensive, and the court’s operations attracted serious criticism. For Congolese civil
society, the picture is more mixed or even negative. The main criticism of the court per-
tains to the prosecutorial and investigative strategy of the Office of the Prosecutor. One
of the primary criticisms of the ICC’s investigations in the DRC cases is that they lack
representativeness, reflecting only part of the conflict, in terms of both affected victims
and temporal scope.
65
The level of people’s satisfaction/legitimacy of civil and criminal justice institutions has
been measured by the World Justice Project through surveys conducted among a random
sample of 1,000 households per country, in over 100 countries. See, for example, “WJP Rule
of Law Index 2017-2018”, World Justice Project (available on its web site). The author led
the team that developed and deployed these surveys around the world for ten years.

wards transitional justice found that the majority of the re-

spondents sampled in regions most affected by the 2007-2008
post-electoral violence, did not trust their justice system as it
was perceived to be extremely corrupt. A study of people’s
perception of justice and peace in the eastern DRC [Demo-
cratic Republic of the Congo] revealed overall negative per-
ceptions of the national justice system, citing that people
found it corrupt, non-existent, favouring the rich, or requiring
payment. Finally, in Mali, respondents to a small assessment
on transitional justice in the country explained that “justice
isn’t really respected here. We resolve many of our problems
among ourselves, rather than going to the formal justice sys-
tem”, as one artist was quoted as saying. 66
6.7. Judicial Integrity and Independence under the ‘African Tree’:

Customary Justice as Perceived by Users
Customary justice is widely used by vast segments of the population in de-
veloping countries, for a variety of reasons:
Many observers point to the practical needs of rural popula-
tions when explaining the popularity and functionality of in-
formal justice institutions. Rural populations often have better
access to informal justice systems than to the state judiciary
and they prefer them for a number of significant reasons: typi-
cally, the procedure takes place on site, it is more or less free
of cost and less prone to corruption, it is exercised by trusted
people in the language everybody speaks, and decisions are
taken according to rules known to all community members. In-
formal procedures typically aim at restoring social peace in-
stead of enforcing abstract legislation. They are consent and
justice oriented. In this sense, informal justice systems allow
for better ‘access to justice’.
Apart from these common features, informal justice insti-
tutions are, in large geographical areas, the only choice due to
the absence of the state. This is often the case in regions
where colonial powers did not attempt to establish formal
court systems, such as North Yemen or Afghanistan. In the
situation of armed conflict, informal justice institutions often
gain more importance due to the breakdown of the formal
66
Mieth, 2017, p. 8, see above note 14 (citations omitted).

court systems. In post-conflict societies they can play a crucial

role in the stabilisation and reconciliation process. 67
In Pakistan,
the formal legal system proves less efficient and less accessi-
ble in terms of infrastructure, language and facilities as well as
actual delivery of justice to the citizens, and hence there has
been an increased reliance on this alternative and traditional
form of dispute resolution in Pakistan. It is argued that local
tribunals because of their proximity substantially reduce the
cost of dispute settlement for the poor, and are decided on the
basis of customary law, which the villagers can comprehend.
Most importantly, however, the contrast drawn between the
formal system and the informal tribal system is that the deci-
sions of the tribal system enjoy the ‘sanction of tradition and
are more readily and willingly acceptable’ by the parties. State
laws are rarely understood by the uneducated masses and
‘court decisions do not inspire confidence either in merit or
impartiality’. 68
Similarly, in Afghanistan,
the main reasons that Afghan people have preferred
jirga/shura to formal justice is because the former is conduct-
ed by respected elders with established social status and the
reputation for piety and fairness. In many cases, the disputants
personally know the local elders and trust them. In addition, in
the context of jirga/shura, elders reach decisions in accord-
ance with accepted local traditions/values (customary law)
that are deeply ingrained in the collective conscience of the
village/tribe – they have a profound existence in the collective
mind of the village and in the minds of its individual members.
Also unlike state courts, jirga/shura settle disputes without
long delays and without financial costs. Illiteracy plays an im-
portant role in discouraging people from using the formal
courts – the overwhelming majority of Afghans are unable to
67
Tilmann J. Röder, “Informal Justice Systems: Challenges and Perspectives”, in Juan Carlos
Botero, Ronald Janse, Sam Muller and Christine Pratt (eds.), Innovations in Rule of Law,
HiiL and The World Justice Project, Washington, DC, 2012, pp. 58–61 (emphasis added).
68
Rehman, I.A. Dark Justice, News Line, August 2002. Irfan, 2008, p. 24, see above note 23.

make applications, read/understand the laws or complete the

paper work. 69
Furthermore, for many Liberians, the punishing system of formal
justice is widely regarded in disbelief as it is not concerned about getting to
the root of the problem, but in placing blame and punishing, eventually fur-
ther dividing society. To many people, this system is not constructive and
not worth it; they are rather interested in making amends, forgiving, and
strengthening the community through the dispute resolution process. More
than tradition, restorative justice, which favours social reconciliation – the
African Tree – is linked to the socio-economic context in which the majori-
ty of Liberians live; bearing in mind the means of subsistence and econom-
ic interdependence of rural societies, confrontational relations amid neigh-
bours can have serious costs. 70
Survey after survey around the world 71 tends to confirm the users’
preference for customary justice, for the reasons explained in the previous
paragraphs. According to a study published by several agencies of the UN,
[t]he data collected [in Malawi] confirmed previous conclu-
sions that a major proportion of the population primarily use
IJS [informal justice systems]. In the qualitative data collected,
approximately one third of the respondents said they preferred
to take a case to the traditional leaders first (see below), while
another third would first go to church leaders. While the na-
ture of the services provided by church leaders tends to differ
from IJS, and a religious official or paralegal might provide
advice rather than dispute resolution as such, it can be said
that the main sources of help for people facing disputes are the
family counselors, religious leaders, NGOs/CBOs, and tradi-
tional authorities (TAs). 72
69
Ali Wardak, “Building a post-war justice system in Afghanistan”, in Crime, Law and Social
Change, Kluwer Academic Publishers, Netherlands, 2004, vol. 41, p. 319–341.
70
See, for example, Isser et al., 2009, see above note 23.
71
For example, Law and Justice in Timor-Leste: A Survey of Citizen Awareness and Attitudes
Regarding Law and Justice, USAID and Asia Foundation, 2008, p. 33; Informal Justice Sys-
tems, Charting a Course for Human Rights-Based Engagement, UN Women, the United Na-
tions Children’s Fund (‘UNICEF’) and United Nations Development Programme (‘UNDP’),
United Nations, New York, 2012, p. 321; Isser et al., 2009, see above note 23; World Justice
Project’s surveys in over 100 countries, described in Juan Botero and Alejandro Ponce,
Measuring the Rule of Law, The World Justice Project, 2011.
72
UN Women, UNICEF and UNDP, 2012, p. 321, see above note 71.

For most people around the world, the notion of ‘customary justice’
is more readily identified with the notion of the ‘African Tree’ – the friend-
ly meeting place where the community comes together to amend the bro-
ken bonds. 73 Skelton presents the South African variant of this notion as
follows:
The ‘African philosophy’ […] is known as ubuntu. It has been
described as an African worldview, which is both a guide for
social conduct as well as a philosophy of life. Archbishop
Desmond Tutu explains in his book about the TRC [Truth and
Reconciliation Commission] that during the negotiation pro-
cess, a decision had to be made about what form the commis-
sion to deal with South Africa’s past should take. The two
possibilities of the Nuremberg-type trials or an unconditional
amnesty process were overtaken by a third approach of condi-
tional amnesty, and that this approach was consistent with
Ubuntu. He explains further:
Ubuntu is very difficult to render into a Western
language. It speaks of the very essence of being
human. When we want to give high praise to some-
one we say ‘yu, u nobuntu’ (hey, he or she has ub-
untu). This means they are generous, hospitable,
friendly, caring and compassionate. They share what
they have. It also means my humanity is caught up,
is inextricably bound up, in theirs. We belong to a
bundle of life. We say, ‘a person is a person thought
other people’.
He goes on to clarify how ubuntu is linked to the idea of
forgiveness. He asserts that to forgive is not just to be altruis-
tic, it is the best form of self-interest because forgiveness
gives people resilience, enabling them to survive and emerge
still human despite all efforts to dehumanize them. He con-
cludes that even the supporters of apartheid were victims of
the vicious system which they implemented, because within
the context of ubuntu, our humanity is intertwined.
The concept of ubuntu has underpinned societal harmony
in Africa for many years, and guided traditional conflict reso-
lution. Traditional mechanisms to deal with problems arising
in communities have been effective structures for upholding
African customary law. It has been said that ‘reconciliation,
73
The notion of justice as the ‘African Tree’ is introduced at above note 18.

restoration and harmony lie at the heart of African adjudica-

tion’, and that the central purpose of a customary law court
was to acknowledge that a wrong had been done and to de-
termine what amends should be made. Some of these custom-
ary courts, known as Izinkundla, Izigcawu or Makgotla are
still in operation throughout South Africa today, mostly in ru-
ral areas.
The traditional model currently practiced in rural areas in
South Africa is similar to indigenous traditions in other coun-
tries such as New Zealand and Canada. It involves elders (al-
most exclusively men) who preside over the resolution of
problems experienced by members of the community, which
have not been resolved at the family or community level. With
the emphasis on ‘problems’ rather than offences, these struc-
tures hear the stories of the parties involved and then make
decisions regarding outcomes. These outcomes aim to heal re-
lationships, and they ensure restitution or compensation to
victims. Symbolic gestures such as sacrifice of animals and
the sharing of a meal indicate that the crime has been expiat-
ed and the offender can now be reintegrated. 74
The ‘African Tree’ notion of justice includes many variants and is not
exclusive to the African continent; manifestations of the same concept of
justice in other latitudes, including the Middle East, South Asia, East Asia,
and North and South America, are presented in detail elsewhere. 75
This contrasting views on the role of justice in society have been de-
bated in the context of international criminal justice:
A limit to the Western-based models of international justice is
their primary focus on prosecuting individuals. In many Afri-
can societies there is often an additional communal dimension
of culpability which points more to the necessity of reconcilia-
tion rather than punishment. This is an argument that can well
be extended beyond Africa. 76
But before we proceed any further with the idea that the solution to
the ailing field of international criminal justice may include a move in the
74
Ann Skelton, “Restorative Justice as a Framework for Juvenile Justice Reform: A South
African Perspective”, in British Journal of Criminology, 2002, vol. 42, no. 3, pp. 496, 498-
499 (emphasis added) (citations omitted).
75
Botero, 2013, see above note 6.
76
Mieth, 2017, p. 7, see above note 14 (citations omitted).

direction of customary justice, it is important to state the following caveat:

Customary justice is not deprived of shortcomings, including severely bi-
ased treatment of segments of the population (often amounting to viola-
tions of international human rights, including discrimination). There are
egregious violations of universal human rights committed by customary
justice authorities in various continents, in the name of ‘community har-
monizing justice’. 77 Some examples include the ‘tar and feather’ justice of
Cameroon, the stoning of child witches in Nigeria, the gang-raping of
Mukhtar Mai in Pakistan, and pervasive gender discrimination among cus-
tomary justice authorities in Colombia. Moreover, restorative justice ap-
proaches in the face of mass atrocities, such as the gacaca courts in Rwan-
da, are not without severe limitations and critics. 78
6.8. The Bangalore Principles of Judicial Conduct and Articles
36(3)(a) and 42(3) of the Rome Statute, under the ‘African Tree’
As stated in Section 6.1. above, this chapter’s first goal was to address
whether the Bangalore Principles of Judicial Conduct command truly uni-
versal acceptance, and whether they indeed “give expression to the highest
traditions relating to the judicial function as visualized in all cultures and
legal systems” and “all the great religious systems of the world”, as Judge
Weeramantry claims.
What has been explained so far should suffice to conclude that, while
the Bangalore Principles vividly reflect core values of adjudication across
civil and common law traditions (embraced by legal elites in all countries),
the same principles do not reflect a truly ‘universal’ understanding of judi-
cial integrity and independence.
For instance, the Bangalore Principles are grounded on the Virtues of
Tunnel Vision 79 and the Ideal of Tabula Rasa, 80 which became ‘black-
77
Botero, 2013, at Part IV, see above note 6.
78
Lars Waldorf, “Rwanda’s Failing Experiment in Restorative Justice”, in Carolyn Hoyle,
Restorative Justice: Critical Concepts in Criminology, Routledge, 2008, vol. 2, pp. 364–381.
79
“The Virtues of Tunnel Vision. The pure conflict-solving process demands more from the
decision maker than neutrality as between the parties; he must also be blind to any consider-
ations that transcend the resolution of the dispute before him”, see Damaška, 1986, p. 140,
see above note 40.
80
“The Ideal of Tabula Rasa. If in the conflict-solving process the decision is to emerge from
the dialectic of party debate, ideally the decision maker must enter the case unprepared, un-
aware of all matters specifically related to the issue. He should have a ‘virgin mind,’ to be

boxed’ within the legal process of the common law about seven hundred
years ago. 81 As it was explained above, these principles are by essence in-
compatible with the ‘African Tree’, which is the prevailing notion of Jus-
tice among vast segments of the population today, not only in Africa but
also in Asia and Latin America.
The Rome Statute is, by essence, incompatible with basic customary
justice tenets around the world. For instance, the personal, intimate relation
existing between the Mamo and each member of the community among the
Kogi people of Colombia – which constitutes the essence of the Kogi sys-
tem of fact-finding and adjudication – would not only be inappropriate, but
also highly indicative of bias under the lens of UNODC’s Commentary on
the Bangalore Principles of Judicial Conduct. 82 According to these princi-
ples:
90. Depending on the circumstances, a reasonable apprehen-
sion of bias might be thought to arise in the following cases:
[…] (b) If the judge is closely acquainted with any member of
the public involved in the case, particularly if that person’s
credibility may be significant in the outcome of the case;
111. Propriety and the appearance of propriety, both profes-
sional and personal, are essential elements of a judge’s life.
What matters is more not what a judge does or does not do,
but what others think the judge has done or might do. For ex-
ample, a judge who speaks privately and at length with a liti-
gant in a pending case will appear to be giving that party an
advantage, even if in fact the conversation is completely unre-
lated to the case. Since the public expects a high standard of
conduct from a judge, he or she must, when in doubt about at-
tending an event or receiving a gift, however small, ask the
question, “How might this look in the eyes of the public?” 83
In other words, when ‘Western’ notions of judicial integrity and in-
dependence – which emphasize legal process, punishment, retributive jus-
tice, and deterrence – demand a distant (blindfolded) judge, customary jus-
tice’s long-established emphasis on restorative justice and community har-
tutored only through the bilateral process of evidentiary presentation and argument.” Ibid.,
p. 138.
81
A detailed explanation of the notion of ‘black boxing’ of legal principles in the civil law and
common law traditions, is provided in Botero, 2013, pt. 5, chap. 3, see above note 6.
82
UNODC, 2007, see above note 10.
83
UNODC, 2007, pp. 57 and 69, see above note 10 (emphasis added).

mony require the exact opposite – a deeply-rooted elder, a wise member of

the community, who must have intimate knowledge of the parties involved
in the dispute.
Around the thirteenth century, Europe experienced a fundamental
transformation about the understanding of the world, and this philosophical
revolution left a profound impact on the European notions of law and jus-
tice. Roman law was rediscovered and embraced wholeheartedly. Lady Jus-
tice – the Roman Goddess of Justice represented as an austere and impar-
tial (blindfolded) woman, holding a sword in one hand and the scales in the
other – slowly came to replace the Christian cross as the prevailing image
of justice in the community. Most saliently, the law of procedure became
the scales of justice, the tool through which Justice with capital J material-
izes in the world. And the instrument of this transformation was the redis-
covered Roman law. 84 This process had its climax at the Enlightenment,
when reason finally triumphed, as the last remnants of the trial by ordeal
were abolished, 85 and the law of the ‘civilized world’ achieved its final
shape. Through parallel processes evolving over a thousand years in Eng-
land and in Continental Europe, judicial integrity came to signify impartial-
ity (the scales of Lady Justice of the common law) and strict application of
the law (the sword of Lady Justice of the civil law).
While these transformations were enormously significant, something
else was lost in translation. This ‘something’ is precisely the ‘African
Tree’. 86 The idea that justice is not a sword used by a powerful judge to cut
and remove the transgressors of the law, or a scale that requires all situa-
tions to be treated equally regardless of context, but rather a friendly meet-
ing place around which the community may unite once again, to heal and
re-establish the bonds that were broken. This accident of history has had
profound implications on the way lawyers and judges see judicial integrity
today, and it may contribute to explain the fading support for the ICC, par-
ticularly in the Global South. But is this distant and blindfolded Lady Jus-
84
“The law of Rome stood for reason, organization, and administrative efficiency under cen-
tral control. Embodied in the superb bodies of the Corpus Juris Civilis, it was rediscovered
and studied as a revelation, the lawyer’s ultima ratio”, see Caenegem, 1982, p. 11, see above
note 34.
85
“The last-mentioned method of ordeal, viz. that by cold water, was resorted to in England
for the detection of witches, until the beginning of the last [eighteenth] century”, see Gibson,
86
See above note 18.

tice of the ‘Western’ legal tradition (which was embraced by legal elites in
the Global South), a mandatory requirement under the Rome Statute?
According to Article 36(3)(a) of the ICC Statute,
3. (a) The judges shall be chosen from among persons of high
moral character, impartiality and integrity who possess the
qualifications required in their respective States for appoint-
ment to the highest judicial offices.
And pursuant to Article 42(3) of the same statute:
The Prosecutor and the Deputy Prosecutors shall be persons of
high moral character, be highly competent in and have exten-
sive practical experience in the prosecution or trial of criminal
cases. They shall have an excellent knowledge of and be flu-
ent in at least one of the working languages of the Court.
Again, when ‘Western’ notions of judicial integrity and independence
demand a distant (blindfolded) judge, customary justice’s long-established
emphasis on restorative justice and community harmony require the exact
opposite – a deeply-rooted elder, a wise member of the community, who
must have intimate knowledge of the parties involved in the dispute. Un-
less ICC constituencies are able to reinterpret these standards under a
community-harmonizing Justice perspective, the ICC legitimacy crisis in
the Global South will not be remedied.
Nothing in the Rome Statute prevents the Office of the Prosecutor
(‘OTP’) to approach cases from the ground-up, in close contact with the
community, and from the perspective of the community. Nothing in the
Rome Statute prevents ICC judges to pay a bit less attention to the global
human rights movement (which played an invaluable role in the creation of
the ICC and have sustained it for two decades) and sharpen their ears to the
justice needs and aspirations of the community. Do Rohingyas, the Ken-
yans and the rural Colombians who face violations have the same justice
needs and aspirations? If the ICC only acts from The Hague, from the per-
spective of The Hague, and is ultimately unaccountable to the particular
community that was affected by grave crimes, the ICC will never achieve
truly universal acceptance. While this distance is in part a problem caused
by lack of resources, it is also a problem of perspective. 87
87
“[D]elays are a product of scarce investigative resources, a lack of state cooperation, and
other factors. But with limited communication and outreach, victims and members of affect-
ed communities have been left wondering what, if anything, the court is doing”, see Gold-
ston, 2019, see above note 1.

While the global criminal court has an important role to play as court
of last resort for mass atrocities, it cannot behave as the continuation of the
old judicial institutions of the European colonizers, as it is currently per-
ceived by vast segments of the population in the Global South.
6.9. Is There a Truly Universal Understanding of Judicial Integrity
and Independence?
This chapter’s second research question was whether a truly multicultural
understanding of integrity and independence in international criminal jus-
tice (not the specific standards of the ICC or other tribunals), implies a
move towards ‘relativizing’ these standards.
At a basic level, this research shows that adopting a broader cultural
perspective that goes beyond the narrow standpoint of the world’s legal
elites, necessarily implies a move towards relativizing the aforementioned
global standards of judicial integrity and independence. Indeed, if the no-
tions of judicial integrity and independence underlying the views on justice
and due process prevailing among the Navajo Nation in North America, 88
the Kogi community in Colombia, 89 or the Liberian chiefs, 90 are examined
under the light of the UN-sponsored standards of judicial integrity and in-
dependence, it becomes apparent that the meaning of ‘justice’ and ‘due
process’ among these communities does not match that of the civil law and
the common law traditions (that is, the ‘Western’ legal tradition), which un-
derlie the Bangalore Principles of Judicial Conduct. 91
Yet, at a higher level of abstraction, it is also argued that the core
components of integrity and independence transcend all legal traditions.
From time immemorial, dispute resolution systems were (at least in theory)
created to provide equal justice among unequal parties, that is, to protect
the weak – the strong did not need protection. This ideal is present in all
legal traditions of the world:
[I was called] to bring about the rule of righteousness in the
land […] so that the strong should not harm the weak.
Prologue, Hammurabi’s Code, 1772 BCE
88
See, for example, Paul Spruhan, “The Meaning of Due Process in the Navajo Nation”, in
The Indian Civil Rights Act at Forty, UCLA American Indian Studies Center Publications,
2012.
89
Botero, 2013, at pt. 4, chap. 5, see above note 6.
90
Ibid., at pt. 4, chap. 4.
91
The Bangalore Principles, see above note 8.

If someone disobeys the law, even if he is worthy, he must be

punished. If someone meets the standard, even if he is unwor-
thy, he must be found innocent. Thus the Way of the public
good will be opened up, and that of private interest will be
blocked.
The Huainanzi, 139 BCE, Han Dynasty, China
Treat the people equally in your court and give them equal at-
tention, so that the noble shall not aspire to your partiality, nor
the humble despair of your justice.
Judicial Guidelines from ‘Umar Bin Al-Khattab,
the Second Khalif of Islam, 634-644 CE
From time immemorial, the litmus test of a judge’s integrity is
whether he or she actually protected the weak, when he or she was called
upon to do so. Of course, holding the ‘strong’ accountable for violations, is
one way to protect the ‘weak’. A more culturally competent and inclusive
(less Euro-centric, legalistic and patronizing) reading of the Rome Statue,
could potentially tap into this common well of wisdom of all humanity.
Sine the Nuremberg trials, international criminal justice appears to
have converged around the notion that a court’s true measure is given by its
ability to bring about universal accountability for grave crimes. In the
words of Teitel:
Nuremberg established the principle of individual criminal ac-
countability for human rights violations perpetrated against
civilians in wartime: that certain crimes are so heinous that
they violate the “law of nations” and may be prosecuted any-
where. 92
The courts and tribunals established since Nuremberg, including the
International Criminal Tribunal for the former Yugoslavia, the International
Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, and,
ultimately, the ICC, all function under the same basic understanding. In
other words, the true measure of their integrity, from a ‘universal’ perspec-
tive, seems to be their ability to bring about accountability. Yet, accounta-
bility has many flavours. It can take the form of purely retributive punish-
ment, or more community-harmonizing, culturally competent restorative
justice.
92
Ruti Teitel, “Transitional Justice: Postwar Legacies”, in Cardozo Law Review, 2006, vol. 27,
no. 4, p. 1615.

Arguably, one of ICC’s greatest successes – its relentless push for ac-
countability in Colombia, gently implemented through positive comple-
mentarity 93 – is a manifestation of the OTP and the whole court’s commu-
nity-harmonizing and culturally-competent understanding of the justice
needs and aspirations of Colombian people, beyond black and white ac-
countability under immutable international standards. According to Gold-
ston:
Despite its problems, the ICC has had important impacts out-
side the courtroom. Even as it has refrained from pursuing its
own investigation of possible war crimes and crimes against
humanity in Colombia, the court’s quiet monitoring and over-
sight of postwar developments in the country have helped en-
sure that accountability is a critical part of a national peace
process following a decadeslong civil war. 94
Similarly, according to International Centre for Transitional Justice,
“Colombia’s obligations as a State Party to the Rome Statute appear to
have weakened domestic tolerance of impunity”. 95 Most informed observ-
ers in Colombia perceive the ICC’s role during the peace process with the
Revolutionary Armed Forces of Colombia (FARC) as a more culturally-
competent and inclusive (less Euro-centric, legalistic and patronizing) read-
ing of the Rome Statue. Perhaps this success is owed, at least in part, to the
Prosecutor’s ability to understand Colombia’s language and culture – in
contrast to his apparent inability to read Kenyan culture, and the justice
needs and aspirations of the Kenyan people during the same period. “The
Kenyan case shows how a government has consistently and effectively em-
ployed the rhetoric of ‘imposed international justice’ throughout its ICC
proceedings.” 96
The contrasting outcome of the Colombian and Kenyan cases re-
spond to a plurality of causes that would be impossible to explore within
the limited scope of this chapter. Nonetheless, at least in principle, these
two cases seem to suggest that unless international criminal justice moves
93
William W. Burke-White, “Proactive Complementarity: The International Criminal Court
and National Courts in the Rome System of International Justice”, in Harvard International
Law Journal, 2008, vol. 49, no. 53.
94
Goldston, 2019, see above note 1.
95
Amanda Lyons and Michael Reed-Hurtado, “Colombia: Impact of the Rome Statute and the
International Criminal Court”, in International Center for Transitional Justice, 2010, p. 1.
96
Mieth, 2017, p. 5, see above note 14.

further in the direction of recognizing and accommodating to some extent

regional standards regarding the trade-off between peace and justice in
transitional situations, it will not be perceived as truly universal and legiti-
mate by large segments of the population in the Global South.
The OTP’s reading of the Colombian situation is an example of the
ICC taking unprecedented steps (despite strong pressure to the contrary) to
interpret the Rome Statute under the light of a country’s particular situation
and in harmony with its people’s unique justice needs and aspirations,
without sacrificing universal principles of accountability for grave
crimes. 97
97
For information on recent experiences with transitional justice in Colombia, particularly in
the context of the Special Jurisdiction of Peace created by the 2016 Peace Agreement with
FARC, and the Justice and Peace process created by Law 975 of 2005, regarding paramili-
tary groups, see, for example, Nelson Camilo Sánchez León, Acceptance of International
Criminal Justice - Country Study on Colombia, in International Nuremberg Principles Acad-
emy, 2017; Paul Seils, Squaring Colombia’s Circle: The Objectives of Punishment and the
Pursuit of Peace, International Center for Transitional Justice (‘ICTJ’), New York, 2015;
Botero and Merchán, 2020, see above note 5; El enfoque de macro criminalidad en el pro-
ceso penal de Justicia y Paz. Lecciones para la Jurisdicción Especial para la Paz, ICTJ,
New York, 2019; Institute for Integrated Transitions (‘IFIT’), Rethinking Peace and Justice
(available on its web site); Julieta Lemaitre and Lina Rondón, “La justicia restaurativa y la
escucha: un análisis del componente oral de los informes mixtos y de las versiones volunta-
rias en el Caso 01”, in Danilo Rojas Betancourth (ed.), La JEP vista por sus jueces (2018-
2019), Jurisdicción Especial para la Paz, Bogotá; Rafael A Prieto Sanjuán, “La jurisdicción
especial para la paz: internacional, a pesar de todo”, in Ruiz-Rico, Szegedy, Prieto and Gar-
zon (eds.), Retos en la implementación de los acuerdos de paz en Colombia, Tirant lo Blanch,
2018; Orlando Humberto de la Vega Martins, “Juicio al mal radical? Dos reflexiones acerca
de la justicia transicional en Colombia”, in Ruiz-Rico, Szegedy, Prieto and Garzon (eds.),
Retos en la implementación de los acuerdos de paz en Colombia, Tirant lo Blanch, 2018;
Carlos Ignacio Jaramillo, “El ‘derecho a no ser victima’, y su incidencia en el ‘posconflicto’
colombiano”, in Ruiz-Rico, Szegedy, Prieto and Garzon (eds.), Retos en la implementación
de los acuerdos de paz en Colombia, Tirant lo Blanch, 2018; Lorena Cecilia Vega Dueñas,
“Modelo de justicia transicional: el caso colombiano”, in Ruiz-Rico, Szegedy, Prieto and
Garzon (eds.), Retos en la implementación de los acuerdos de paz en Colombia, Tirant lo
Blanch, 2018; Open Society Justice Initiative, 2018, p. 362, see above note 26; Lorena Ceci-
lia Vega Dueñas and Alberto José Olalde Altarejos, “La justicia restaurativa como paradigma
orientador de paz: los encuentros restaurativos”, in Revista Icade: Revista de las Facultades
de Derecho y Ciencias Económicas y Empresariales, 2018; Gustavo Emilio Cote Barco,
“Responsibility for leadership in the Peace Agreement signed by the Colombian Government
and the FARC-EP: An analysis based on the Bemba case of the International Criminal
Court”, in Nuevo Foro Penal, 2019, vol. 15, no. 92; Laura Bernal-Bermudez and Daniel Ma-
rin Lopez, “Los empresarios en la guerra: verdad judicial sobre la complicidad empresarial
en Colombia”, in Cuentas Claras: El Papel de la Comisión de la Verdad en la develación de
la responsabilidad de empresas en el conflicto armado colombiano, 2018, pp. 39–66, Centro
de Estudios de Derecho, Justicia y Sociedad, Colombia; Comisión Internacional de Juristas,

In sum, a truly universal understanding of integrity in international

criminal justice does not emerge from a purist and unyielding reading of
the Rome Statute. At least from the perspective of large segments of the
population in the Global South, the ICC’s integrity as an institution, signif-
icantly depends upon its ability to read the cultural nuances of the situa-
tions under review. In the timeless words of Jean-Étienne-Marie Portalis:
Les lois ne sont pas de purs actes de puissance; ce sont des
actes de sagesse, de justice et de raison. Le législateur exerce
moins une autorité qu’un sacerdoce. Il ne doit point perdre de
vue que les lois sont faites pour les hommes, et non les
hommes pour les lois; qu’elles doivent être adaptées au carac-
tère, aux habitudes, à la situation du peuple pour lequel elles
sont faites. 98
Colombia: Jurisdicción Especial para la Paz, análisis a un año y medio de su entrada en

funcionamento, Junio 2019; Heidi Abuchaibe, Andrei Gómez-Suárez, and Camilo Eduardo
Umaña Hernández, Justicia Restaurativa: oportunidades y retos para construir una paz es-
table y duradera, Defensoría del Pueblo, Republica de Colombia, 2018; Lilia Inés, Ávila Al-
férez and Juanita Cardona Pachón, Jurisdicción Especial para la Paz, Defensoría del Pueblo,
Republica de Colombia, 2018; Juan Felipe García and Norberto Hernández, “Amnistías, in-
dultos y tratamientos especiales diferenciados como mecanismos de justicia transicional en
Colombia: El modelo del acuerdo de paz de 2016”, Pontifica Universidad Javeriana
(forthcoming 2020); Juan Felipe García, “Los debates de la justicia transicional en Colom-
bia”, in Sebastián Peñuela Camacho, Eduardo F. Gutiérrez González, and María Lucía Zapa-
ta Cancelado (eds.), Retos de la implementación de la justicia transicional en Colombia,
Editorial Pontificia Universidad Javeriana, Bogotá, 2020; Norberto Hernández, “El ‘nuevo’
acuerdo final para la paz a través del lente del derecho penal”, Revista Nuevo Foro Penal,
vol. 13, no. 88, 2017, Universidad EAFIT; Alejandro Aponte Cardona, El proceso penal es-
pecial de justicia y paz alcances y límites de un proceso penal concebido en clave transicio-
nal, Citpax, 2011; Gustavo Emilio Cote-Barco, “Responsabilidad del superior jerárquico y
responsabilidad penal por omisión de miembros de la fuerza pública en Colombia: ¿conver-
gencia entre el derecho penal nacional e internacional?”, International Law, Revista Colom-
biana de Derecho Internacional, 2016, vol. 14, no. 28, pp. 49–112; Gustavo Cote-Barco, “El
proceso penal especial de justicia y paz: ¿verdadera alternativa para la transición a la paz u
otro intento fallido de consolidación del estado en medio de la guerra?”, International Law:
Revista Colombiana De Derecho Internacional, 2010, vol. 8, no. 17; Gustavo Cote Barco,
“Complicidad, responsabilidad penal de directivos empresariales y violaciones de Derechos
Humanos cometidas por grupos armados ilegales: lecciones del Derecho Penal Internacional
para Colombia”, Vniversitas, 2019, vol. 68, no. 138; Leigh Payne, Gabriel Pereira and Laura
Bernal-Bermúdez, Transitional Justice and Corporate Accountability from Below: Deplo-
ying Archimedes’ Lever, Cambridge University Press, 2020; Astrid Liliana Sánchez, Victims’
Rights in Flux: Criminal Justice Reform in Colombia, Springer, 2017.
98
Jean-Étienne-Marie Portalis, Discours préliminaire du premier projet de Code civil, 1801.

6.10. People Need Justice: Integrity Also Means Timeliness

For ordinary citizens around the world, expectations about justice are the
same as those of someone waiting for a tram in a lonely city in the middle
of the night: they want it ‘reasonably fast’, ‘reasonably affordable’, and
‘reliable’. Based on my experience measuring people’s perceptions of jus-
tice in over one hundred countries over the past two decades, for ordinary
citizens, Justice is perceived as ‘corrupt’ if it is: ‘too slow’, ‘too expensive’,
‘unreliable’, or it ‘only persecutes the weak’.
In this light, the sixth principle recognized by the Bangalore Princi-
ples of Judicial Conduct, the value of ‘Competence and Diligence’, is per-
haps the one that most directly influences current global perceptions of ju-
dicial integrity in international criminal law. Some civil society observers
of the ICC acknowledge “a string of disappointments that have shaken con-
fidence in the institution”. 99
The disappointment largely stems from the perceived inaction of the
ICC while continuing to incur costs. 100 Even the staunchest ICC supporters
might wonder whether the ICC is fit to carry out its purpose. 101 The ICC’s
inability to hold the powerful accountable for so long, has seriously un-
dermined the court’s legitimacy and the perception of integrity of the court
across the Global South. The court’s inclination to allow the investigation
of the situation in Afghanistan, may constitute a first step to re-establish its
credibility as an impartial arbiter in the eyes of ordinary folk in developing
countries. 102
6.11. Implications for International Criminal Justice and the ICC
This chapter’s final goal was to explore whether there are notions of judi-
cial integrity and independence that underlie the world’s broader under-
standing of Justice (with capital ‘J’), regardless of legal tradition, and how
99
100
Goldston, 2019, see above note 1 (and the familiar passage: “it is disconcerting that one-
third of the court’s judges are suing for a pay raise plus pension increases and damages that
could run into the millions. Why, when the court has been underperforming and the budget
is strained, are its judges dedicating precious time and energy to increase their already gen-
erous compensation—which at around $200,000 tax-free exceeds that of judges on many na-
tional courts?”).
101
Hatcher-Moore, 2017, see above note 1.
102
Peltier and Faizi, 2020, see above note 3.

these global perspectives may influence the way we see international crim-
inal justice in the multi-cultural world of the twenty-first century.
The growing disconnection between legal elites and the rest of the
people throughout the world, may also affect the ICC – an institution that
has been perceived as ‘foreign’ or ‘alien’ by large segments of the world’s
population. The time has come for friends of international criminal law
principles to give serious consideration to the ‘African Tree’. This does not
mean to question the validity of the Rome Statute in any way. It is rather a
gentle suggestion to try to read the same statute under the light of ancestral
notions of community-harmonizing justice.
Some criticize South Africa for depicting the ICC “as a so-called
Western institution imposing double standards”. 103 With all due respect for
these opinions – even though the Rome Statute was negotiated by judges
and lawyers from around the world, and the ICC’s staff comes “from more
than 90 countries, each with their own legal cultures and traditions” 104 – the
court is an expression of the European ideal of Justice, not a manifestation
of a truly global understanding of Justice; “if ideas and institutions about as
fundamental and personal a value as justice are imposed from outside
without an internal resonance, they may flounder, notwithstanding their
assertion of universality”. 105
At the very minimum, international criminal law experts should bear
in mind that the fact that the Bangalore Principles and the Rome Statute
were negotiated by High Court Justices and lawyers from over one hundred
countries does not mean that these global standards and rules represent the
cultural traditions of an increasingly interconnected, anti-elitist, and cultur-
ally self-assertive global population. Legal elites throughout the world find
it hard to acknowledge that the ‘Western’ legal tradition, in which they
were educated, does not necessarily reflect the Justice needs and aspira-
tions of people in the Global South of the twenty-first century.
In the context of the common law tradition, judicial integrity means
impartiality. In the civil law tradition, it means strict application of the law.
None of them reflects the ideal of justice of ordinary people in the Global
South. As it was explained above, customary justice is widely used by vast
103
104
Ibid.
105
Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War, Polity Press, Cam-
bridge, 2002, p. 49.

segments of the population in developing countries, for a variety of reasons.

The same reasons may apply to public perceptions of international criminal
justice in the Global South. 106
A twentieth century institution that is perceived as ‘patronizing’ and
‘neo-colonial’ by significant segments of the world’s population, can hardly
be perceived to have integrity in the globalized, hyper-connected, anti-
elitist, and culturally self-assertive world of the twenty-first century. While
the Rome Statute cannot be renegotiated in today’s polarized geopolitical
environment, incremental change may be made to bring the international
criminal justice system closer to the people, to increase the system’s legit-
imacy at the regional level, and to ultimately advance its high goals. At an
age characterized by profound mistrust for elites, Humpty Dumpty has fall-
en 107 and it cannot be made whole again by simply keep hailing the Court’s
elevated goals.
The Colombian experience dealing with pervasive and long-lasting
violations through the Special Jurisdiction of Peace (JEP), may shed some
light on alternative ways to consider international criminal law principles
in the context of peace and reconciliation needs of the community. 108
Perhaps in a not so distant future, the international criminal justice
system will encompass, in addition to a down-scaled and more efficient
ICC, a network of smaller and more agile, loosely affiliated regional mech-
anisms, which give proper consideration to local customs, languages and
traditions, in the conceptualization and application of judicial process,
forms of punishment, and community outreach – perhaps a bit more in line
with the ‘African Tree’.
This chapter’s conclusion is also a gentle suggestion for international
criminal law experts to revisit the sixth principle of the Bangalore Princi-
106
Röder, 2012, pp. 58–61, see above note 67 (emphasis added):
Rural populations often have better access to informal justice systems than to the state
judiciary and they prefer them for a number of significant reasons: typically, the proce-
dure takes place on site, it is more or less free of cost and less prone to corruption, it is
exercised by trusted people in the language everybody speaks, and decisions are taken
according to rules known to all community members. Informal procedures typically aim
at restoring social peace instead of enforcing abstract legislation. They are consent and
justice oriented. In this sense, informal justice systems allow for better ‘access to justice’.
107
As the popular rime reads: “Humpty Dumpty sat on a wall. Humpty Dumpty had a great fall.
All the king’s horses and all the king’s men. Couldn't put Humpty together again”.
108
For a description of the Colombian Peace Jurisdiction and its departures from standard can-
ons of international criminal justice, see above note 97.

ples of Judicial Conduct – the principle of ‘Competence and Diligence’ – as

the main driver of perceptions about integrity of justice. For ordinary citi-
zens throughout the world, Justice is perceived as ‘corrupt’ if it is too slow,
too expensive, unreliable or it only persecutes the weak. At the very mini-
mum, the threat of increased competition at the regional level may moti-
vate Humpty to bring its act together again.

7
______
Ethics, Integrity and the Bemba Acquittal

Shannon Fyfe *
7.1. Introduction
On 8 June 2018, the Appeals Chamber of the International Criminal Court
(‘ICC’) acquitted Jean-Pierre Bemba Gombo (‘Bemba’) of the charges of
war crimes and crimes against humanity, overturning the decision of Trial
Chamber III to convict the defendant. 1 Three judges joined in the Judgment
issued by the majority, while two judges dissented. 2 The conviction had
been appealed on six separate grounds, but the Judgment overturning the
conviction focused on two grounds: first, that the conviction exceeded the
charges, and second, that Bemba was not liable as a superior. 3
On 13 June 2018, Prosecutor Bensouda released a statement 4 ex-
pressing concern with the Appeals Chamber’s decision. Notably, she stated
that she “must uphold the integrity of the Court’s processes and accept the
outcome”. 5 Yet, she went on to indicate her worries that the Appeals
Chamber’s judgment reflected radical interpretations of jurisprudence and
*
Shannon Fyfe is an Assistant Professor of Philosophy at George Mason University, where
she is also a Fellow at the Institute for Philosophy and Public Policy and an Adjunct Profes-
sor at the Antonin Scalia Law School. She holds both a Ph.D. in philosophy and a J.D. from
Vanderbilt University. Her prior work includes an internship with the International Criminal
Tribunal for Rwanda’s Office of the Prosecutor, the American Society of International Law’s
Arthur C. Helton Fellowship for international human rights law in Tanzania, and a fellow-
ship with the Syria Justice and Accountability Centre. She has published International Crim-
inal Tribunals: A Normative Defense, Cambridge University Press, Cambridge, 2017 (co-
author with Larry May).
1
International Criminal Court (‘ICC’), Situation in the Central African Republic, Prosecutor v.
Jean-Pierre Bemba Gombo, Appeals Chamber, Judgment on the appeal of Mr Jean-Pierre
Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”,
8 June 2018, ICC-01/05-01/08A (‘Judgment’) (https://www.legal-tools.org/doc/40d35b).
2
Ibid.
3
Ibid., para. 32.
4
ICC Office of the Prosecutor (‘OTP’), “Statement of ICC Prosecutor, Fatou Bensouda, on
the recent judgment of the ICC Appeals Chamber acquitting Mr Jean-Pierre Bemba Gombo”,
13 June 2018.
5
Ibid.

precedent. 6 Prosecutor Bensouda closed her statement by acknowledging

the victims of violence in the Central African Republic (‘CAR’) and pro-
claiming the solidarity of the Office of the Prosecutor (‘OTP’) with these
victims. 7
The Appeals Chamber judgment and the corresponding statement
from the Prosecutor reveal the challenge faced by the OTP in balancing
ethical obligations demanded by particular legal and moral standards, and
maintaining the integrity of both the Office and the institution as a whole.
Prosecutor Bensouda faced the seemingly impossible task of defending the
processes of and prospects for the Court as an international criminal justice
institution, while acknowledging her view that the Court had failed with
respect to the substantive outcome of a particular trial, and the correspond-
ing failure to achieve justice for particular victims of violence. The Prose-
cutor’s public statement illustrates the tension the OTP often faces in seek-
ing short-term international criminal justice and investing in the long-term
sustainability of international criminal justice institutions. It also reflects
the fact that an institution must be dedicated to both actual integrity and the
appearance of integrity, as the lack of one threatens the other.
In this chapter, I consider the role of integrity in decisions made by
individuals, both as individuals and as part of institutional structures, at the
ICC. I begin by arguing that we should take a more systematic approach to
understanding the role of integrity in individual and institutional obliga-
tions, and I attempt to construct such a normative framework. I argue that
in order to answer the primary ethical question for actors in a legal system,
that is, how we should act, we must understand our obligations in terms of
integrity, normative ethical considerations, and specific legal obligations.
I then use the case of the Bemba acquittal and its aftermath to draw
out the various obligations and tensions that exist for prosecutors, judges,
and other actors attempting to defend the cause of international criminal
justice. I argue that in this case, Prosecutor Bensouda may have failed to
achieve her aim of not undermining the institution, and that this failure may
in fact undermine institutional integrity mechanisms of the Court. At the
same time, the Appeals Chamber appears to have failed to meet its own
integrity requirements, and if so, this speaks again to Prosecutor Bensou-
da’s urge to defend the institution. Unfortunately, I conclude, she cannot be
6
Ibid.
7
Ibid.

7. Ethics, Integrity and the Bemba Acquittal
responsible for maintaining the integrity of the entire institution if a sepa-

rate branch fails in meeting its own integrity requirements.
7.2. Individual Integrity
The first distinction I draw is between individual integrity and institutional
integrity. Before we can answer questions about what it means for a group
or an organization to ‘act with integrity’, we must understand the more
straightforward question of what this means for an individual. I begin with
the broad concept of individual integrity before examining the demands of
integrity within the other legal and ethical obligations of prosecutors and
judges.
7.2.1. Integrity for Individual Actors
In this Section 7.2.1., I construct an account of necessary features for indi-
vidual integrity. There are many ways of understanding the philosophical
concept of individual integrity, and I will not attempt to provide a compre-
hensive overview of these views. Rather, I understand integrity to involve
two necessary features: a structural sense of integrity and a substantive
sense of integrity. Within these two camps, I will explore several prominent
possibilities for understanding integrity. Each of these ways of understand-
ing integrity, I argue, can introduce important considerations to an individ-
ual actor’s decision-making process.
7.2.1.1. Structural Conceptions of Integrity
Integrity can be understood as a formal relation an entity has to itself, be-
tween parts of itself, or with other entities. These types of views consider
integrity to be a formal, structural concept. Each conception provides a
helpful way to think about what it means for an individual to make deci-
sions ‘with integrity’, thus I do not find it necessary to adopt one structural
view of integrity to the exclusion of the others.
7.2.1.1.1. Identity and Commitments
Bernard Williams defends a view of integrity based on ‘identity-conferring
commitments’. 8 An identity-conferring commitment is “the condition of
8
See Bernard Williams, “Integrity”, in J.J.C. Smart and Bernard Williams (eds.), Utilitarian-
ism: For and Against, Cambridge University Press, New York, 1973, pp. 108–117; see also
Bernard Williams, Moral Luck: Philosophical Papers 1973-1980, Cambridge University
Press, Cambridge, 1981.

my existence, in the sense that unless I am propelled forward by the cona-

tus of desire, project and interest, it is unclear why I should go on at all”. 9
If an individual abandons such a commitment, according to Williams, then
the individual begins to lose what gives his or her life its moral identity.
For Williams, an individual is “identified with his actions as flowing from
projects and attitudes which in some cases he takes seriously at the deepest
level, as what his life is about” 10 – and when he makes a choice that alien-
ates him from these projects and attitudes, he fails to act with integrity. 11
While many consider integrity to be a virtue, 12 as we will explore shortly,
Williams argues that this is not the case. Integrity is neither motivating nor
enabling; rather “one who displays integrity acts from those dispositions
and motives which are most deeply his, and has also the virtues that enable
him to do that. Integrity does not enable him to do it, nor is it what he acts
from when he does so”. 13
Despite his claim that integrity is not a virtue (but perhaps depends
on virtues?), Williams’ view of integrity in terms of relationship to one’s
identity is intuitive. A reference to integrity can easily conjure a sense of
one’s deep commitments and values. The question remains as to whether
on a defensible view of integrity, there must also be substantive constraints
on what these deep commitments might be.
7.2.1.1.2. Wholeness and Integration
Another related way to think about integrity is in terms of wholeness and
integration. Gabriele Taylor defines a person who possesses integrity as
“the person who ‘keeps his inmost self intact’, whose life is ‘of a piece’,
whose self is whole and integrated”. 14 For Taylor, a person of integrity
“lacks corrupt in the sense that his self is disintegrated”. 15 Taylor argues
that a person of integrity will usually possess moral qualities like honesty
9
Bernard Williams, “Persons, Character and Morality”, in Williams, 1981, pp. 1–19, 12, see
above note 8.
10
Williams, 1973, p. 116, see above note 8.
11
Ibid.
12
A trait is a virtue if there is something about the trait itself that is intrinsically valuable.
13
Bernard Williams, “Utilitarianism and Self-Indulgence”, in Williams, 1981, pp. 40–53, 49,
see above note 8.
14
Gabriele Taylor, “Integrity”, in Proceedings of the Aristotelian Society, Supplementary Vol-
ume, 1981, vol. 55, pp. 143–159, 143.
15
Ibid., p. 144.

and loyalty, but that “we ascribe integrity to him who behaves in socially
acceptable ways, or to him who sticks to his principles however adverse the
circumstances”. 16 We must assume, however, that someone who behaves in
these ways is someone who “keeps his self intact”, given our epistemic po-
sition with respect to an individual’s self. 17
But what does it mean for a self to be integrated or intact? Taylor’s
view of integrity requires that a person be rational: he “will not ignore rele-
vant evidence, he will be consistent in his behaviour, he will not act on rea-
sons which, given the circumstances, are insufficient reasons for action”. 18
Further, an individual with integrity is “not inconsistent in ways that some-
how matter”, and for Taylor this refers to inconsistencies that are connected
to a person’s identity (similar to Williams’ view above). 19 But Taylor gen-
erates further requirements related to identity, such as the condition that “a
person who keeps his self intact will be under ‘due’ influence of his past”. 20
In other words, a person must have a memory of his past and an under-
standing of how it relates to his identity in the present. 21
Like Williams, Taylor does not identify integrity as a virtue, but ra-
ther as something “we hope to get hold of through the virtues”. 22 She ex-
plicitly acknowledges that her view “seems to have the defect that it fails to
account for our thinking of it as some sort of moral quality”, since we are
“reluctant at least to think of the wholly wicked as candidates for integri-
ty”. 23 She contends that we want “to think that the whole or integrated per-
son is also the wholly good person”, but she admits that this is only an as-
sumption under her definition. 24
David Luban offers an alternative view of integrity based on the con-
cept of wholeness in the form of avoiding cognitive dissonance. He defines
integrity as “wholeness or unity of a person, an inner consistency between
16
Ibid.
17
Ibid.
18
Ibid., p. 148.
19
Ibid.
20
Ibid., p. 149.
21
Ibid.
22
Ibid., p. 152.
23
Ibid.
24
Ibid.

deed and principle”. 25 A person of integrity, according to Luban, is “the

person whose conduct and principles operate in happy harmony”. 26 On this
view, then, cognitive dissonance, or the clashing of our conduct and our
principles, threatens our intuitions about integrity. 27 Luban identifies ex-
amples like the Stanford Prison Experiment 28 and the Milgram Experi-
ment 29 as instances where individuals follow along with the prevailing so-
cial norms and then try to justify their otherwise incomprehensible behav-
iour. 30 Because we are “highly resistant to the thought of our own wrong-
doing”, 31 research suggests that “we will bend our moral beliefs and even
our perceptions to fight off the harsh judgment of our own behavior”. 32
Thus, it results in a “kind of integrity in which [one’s] beliefs always ra-
tionalize [one’s] actions after the fact”, 33 instead of acknowledging that we
might have done something wrong.
But Luban goes on to distinguish this so-called integrity from genu-
ine integrity, and instead classifies this behaviour as ‘dissonance reduc-
25
David Luban, “Integrity: Its Causes and Cures”, in Fordham Law Review, 2003, vol. 72,
p. 279.
26
Ibid.
27
Ibid.
28
This refers to an experiment in which volunteer undergraduate subjects were divided ran-
domly into ‘guards’ and ‘inmates’ in a mock prison. In less than a day, those labeled ‘guards’
began bullying and brutalizing the ‘inmates’, while the inmates began to exhibit the pathol-
ogies of real-life prisoners. Five of the inmates had to be released quickly due to “extreme
emotional depression, crying, rage and acute anxiety”. See Craig Haney et al., “Interperson-
al Dynamics of a Simulated Prison”, in International Journal of Criminology and Penology,
1973, vol. 1, p. 81. On the second day, the prisoners revolted and the guards put down the
rebellion by blasting them with fire extinguishers. See Philip Zimbardo et al., “The Mind Is
a Formidable Jailer: A Pirandellian Prison”, in New York Times, 8 April 1973, §6 (Magazine),
p. 41.
29
In the Milgram experiments, subjects were ordered to administer escalating electrical shocks
to another subject in an experiment on the effects of pain on learning. The victim was a con-
federate of the experimenter, and the shocks were fake, but almost two-thirds of the subjects
prove willing to go all the way to the end of the sequence of shocks, despite the fact that the
victim spends much of the time screaming for the experiment to stop, and eventually falls
ominously silent, while the label on the shock-generator reads ‘Danger: Severe Shock’. See
Stanley Milgram, Obedience to Authority: An Experimental View, Harper & Row, New York,
1974.
30
See Luban, 2003, see above note 25.
31
Ibid., p. 281.
32
Ibid.
33
Ibid.

tion’. 34 Integrity, according to Luban, “does not consist of molding and

adapting one’s principles to whatever behaviors we and those around us
find convenient”. 35 Instead, integrity operates in the opposite direction. It
“consists of taking the high road, the road of conforming our behavior to
our principles”. 36 An individual (or as we will see, an institution) is “whole
if it is untouched, unsullied”, and this excludes those who engage in mere
dissonance reduction from meeting the standard for integrity. 37 For Luban,
“the person of integrity is not merely the person whose principles and be-
havior harmonize, regardless of how that harmony gets achieved, but rather
the person who has kept her principles intact (‘intact’ is another word
whose Latin root means ‘untouched’)”. 38
Like Williams and Taylor, Luban acknowledges that his view lacks a
substantive requirement for what those principles must be. 39 He considers
that genuine integrity might consist “not simply of adherence to principles,
but adherence to the right principles, or at any rate to reasonable princi-
ples”. 40 But the problem, according to Luban, is that it is not always possi-
ble for someone to identify the right principles from the inside. 41 He notes
that “the ethical value of integrity is experienced from the inside as a kind
of harmony or equilibrium between values and actions, whereby one does
what one does without departing a nail’s breadth from oneself”. 42 Yet we
are psychologically predisposed to want to “see ourselves as ethically
righteous people regardless of the knavery of our calling”, and thus we can
easily pursue dissonance reduction when we seek genuine integrity. 43 This
presents us with, by my lights, another call for substantive integrity re-
quirements.
34
Ibid.
35
Ibid., p. 298
36
Ibid.
37
Ibid.
38
Ibid.
39
Ibid., p. 299
40
Ibid.; see also Deborah L. Rhode, “If Integrity Is the Answer, What Is the Question?”, in
Fordham Law Review, 2003, vol. 72, pp. 335–36.
41
Luban, 2003, p. 299, see above note 25.
42
Ibid., p. 304.
43
Ibid.

7.2.1.1.3. Standing for Something

Cheshire Calhoun understands integrity to refer to relationships with others,
as a ‘social virtue’, rather than oneself. She argues that “the notion of
‘standing for something’ is central to the meaning of integrity”. 44 Calhoun
distinguishes ‘standing by’ one’s principles, which one can do alone, from
‘standing for’ one’s principles, which implies membership in a community
where there may be conflicting views. 45 The former is “intimately, tied to
protecting the boundaries of the self – to protecting it against disintegration,
against loss of self-identity, and against pollution by evil”. 46 Conversely,
Calhoun argues, integrity should be “tightly connected to viewing oneself
as a member of an evaluating community and to caring about what that
community endorses. That is, it seems to be a social virtue”. 47
Considering integrity to be a social virtue follows, according to Cal-
houn, from the idea that “acting on one’s own best judgment is integral to
some common project” or “to a way of comporting ourselves among oth-
ers”. 48 This means we must see integrity as something more than just “a
matter of the individual’s proper relation to herself”, and instead as “a mat-
ter of her proper relation to common projects and to the fellows with whom
one engages in those common projects”. 49 Calhoun argues that seeing “in-
tegrity as a social virtue enables us to see persons of integrity as insisting
that it is in some important sense for us, for the sake of what ought to be
our project or character as a people, to preserve what ought to be the purity
of our agency that they stick by their best judgment”. 50
Calhoun claims that individuals with integrity
treat their own endorsements as ones that matter, or ought to
matter, to fellow deliberators. Absent a special sort of story,
lying about one’s views, concealing them, recanting them un-
der pressure, selling them out for rewards or to avoid penalties,
and pandering to what one regards as the bad views of others,
44
Cheshire Calhoun, “Standing for Something”, in The Journal of Philosophy, 1995, vol. 92,
no. 5, p. 253.
45
Ibid., pp. 253–54.
46
Ibid., p. 254.
47
Ibid.
48
Ibid., p. 256.
49
Ibid., pp. 256–57.
50
Ibid., p. 257.

all indicate a failure to regard one’s own judgment as one that

should matter to others. 51
Calhoun’s account of integrity speaks to “why we care that persons have
the courage of their convictions” when engaged in deliberation with other
members of a community. 52 Her view will be particularly appealing when
we begin to consider institutional integrity because it speaks to the value of
individual integrity for collective decision-making, so we return to Calhoun
in Section 7.3.
As I have already noted, there is much to be drawn from each of the-
se accounts that accords with our intuitions about integrity. Yet, these struc-
tural conceptions of integrity are insufficient because they would permit
immoral individuals, either alone or in immoral communities, to meet the
formal requirements for integrity while acting in a morally reprehensible
manner. In the sub-section that follows, I offer a complement to the struc-
tural views of integrity.
7.2.1.2. Substantive Conceptions of Integrity
The other main intuition we often have about the concept of integrity re-
lates to its substance. It is, however, possible to act with complete structural
integrity and yet still act in ways that most would find to be intuitively im-
moral. Thus, it is necessary, on my view, 53 for there to be substantive con-
straints on what it means to act with integrity. I now consider two ways of
understanding these substantive constraints.
7.2.1.2.1. Virtue
The thought that integrity is a virtue, in the most general sense of the term,
is highly intuitive. We commonly think of integrity as “an admirable trait of
character and genuine excellence of persons in its own right”. 54 Williams
challenges this intuition based on his claim that while integrity “is an admi-
rable human property, it is not related to motivation as the virtues are. It is
not a disposition which itself yields motivations, as generosity and benevo-
51
Ibid., p. 258.
52
Ibid., p. 259.
53
While they do not use the same terminology I use, other views that require two discrete
aspects of integrity include those espoused by Lynne McFall, “Integrity”, in Ethics, 1987,
vol. 98, pp. 5–20; and Rhode, 2003, see above note 40.
54
Greg Scherkoske, “Could Integrity Be an Epistemic Virtue?”, in International Journal of
Philosophical Studies, 2012, vol. 20, no. 2, p. 185.

lence do”, nor is it a virtue that is “necessary for that relation to oneself and
the world which enables one to act from desirable motives in desirable
ways”, as courage and self-control do. 55 Because Williams sees acting with
integrity as maintaining one’s identity-conferring commitments, integrity is
not tied to particular sorts of thoughts, as one might think would be re-
quired of a virtue.
One compelling way to respond to Williams is to claim that integrity
is a virtue, but that it is a ‘cluster concept’, representing “a cluster of mor-
ally praiseworthy attributes including such things as the sincerity and
steadfastness with which [an individual’s] moral beliefs are held, the strug-
gle [an individual] ha[s] undergone to achieve them, [an individual’s] will-
ingness and capacity to question them”. 56 Damian Cox, Marguerite LaCaze,
and Michael Levine defend such a view, and challenge Williams’ view as
incomplete without any requirement that an individual maintain second-
order moral commitments. 57 They argue that an individual who exemplifies
the virtue of integrity finds an Aristotelian mean between excesses of vir-
tues (such as steadfastness where integrity demands change) and vices
(such as hypocrisy) that stand to undermine integrity. 58
Conceiving of integrity as a virtue, as either an intrinsically valuable
feature or as a cluster of praiseworthy attributes, is compatible with the
structural constraints identified in the previous sub-section, and provides an
option for defeating claims of integrity where clearly immoral principles
have been upheld.
7.2.1.2.2. Moral Purpose
A more concrete way to undergird the moral substance of integrity is to
adopt a view about what sorts of commitments are acceptably defended on
a structural account of integrity. Mark Halfon describes an individual of
integrity as one who embraces “a moral point of view that urges them to be
conceptually clear, logically consistent, apprised of relevant empirical evi-
dence, and careful about acknowledging as well as weighing relevant moral
55
Williams, 1981, “Utilitarianism”, p. 49, see above note 13.
56
Damian Cox, Marguerite LaCaze, and Michael P. Levine, “Should We Strive for Integrity?”,
in Journal of Value Inquiry, 1999, vol. 33, no. 4, p. 521.
57
Ibid., pp. 521, 523.
58
Damian Cox, Marguerite LaCaze, and Michael P. Levine, Integrity and the Fragile Self,
Ashgate Publishing, Aldershot, 2003, p. 49.

considerations”. 59 He identifies these constraints as those which ensure that

an individual attempts to do ‘what is best’ rather than just what can be
plausibly defended. 60 Persons of integrity impose these restrictions on
themselves since they are concerned, not simply with taking any moral po-
sition, but with pursuing a commitment to do what is best. Elizabeth Ash-
ford takes this view a step further and defends an account of ‘objective in-
tegrity’. For Ashford, an attribution of integrity requires that an individual’s
self-conception must be grounded in reality: it must not be
based on her being seriously deceived either about empirical
facts or about the moral obligations she actually has. In par-
ticular, her self-conception as being morally decent must be
grounded in her leading a genuinely morally decent life. 61
This account of integrity tracks what we think is valuable about in-
tegrity: the genuine attributes an individual actually possesses. Without the
objectivity requirement, according to Ashford, an individual could claim
integrity based on her belief that she is leading a worthwhile life, despite
her failure to genuinely accomplish this feat. 62
Given our epistemic position with respect to objective morality,
Halfon’s emphasis on moral reasoning might be more appealing than Ash-
ford’s demand for objective integrity. But his view, as he admits, leaves
significant room for justifying ‘moral views’ that are intuitively immoral.
He admits that his account allows for the possibility that a Nazi plotting the
genocide of the Jewish people could meet the qualifications for being a
person of integrity. 63 Thus Ashford’s objective view, despite its practical
challenges, is a better option for grounding the substance of a structural
account of integrity.
We can now see why the concept of integrity needs both structural
and substantive elements. As Morten Bergsmo noted in the concept note for
this project,
at the individual level, it is necessary to ask whether interna-
tional civil servants and high officials in international courts
59
Mark Halfon, Integrity: A Philosophical Inquiry, Temple University Press, Philadelphia,
1989, p. 37.
60
Ibid.
61
Elizabeth Ashford, “Utilitarianism, Integrity and Partiality”, in Journal of Philosophy, 2000,
vol. 97, p. 4.
62
Ibid., pp. 424–45.
63
Halfon 1989, pp. 134–36, see above note 59.

have a sufficient understanding of what ‘integrity’ and ‘high

moral character’ refer to. It is problematic if these legal terms
are largely seen as slogans or empty shells to which everyone
is free to give equally valid content as may be convenient. 64
If integrity is thought of purely in substantive terms, then the existence of
the term is likely superfluous. And if acting with integrity is just acting
while possessing ‘high moral character’, then the quality does little to in-
form how we should act.
As we will see in the next two sub-sections, prosecutors and judges
are expected to possess both ‘integrity’ and ‘high moral character’, and
therefore it makes sense that the terms should have distinct definitions.
Demanding that one act ‘virtuously’ or ‘with objectively good reasons’
does not give us deontic verdicts – verdicts about which actions are re-
quired, optional, or forbidden. Thus, we need the aforementioned structural
conception to help shape what an individual should do in order to act with
integrity. Further, we will need a normative ethical framework to help us
know how to balance competing claims and how to make ethical decisions
within the context of a criminal justice system, which we consider in the
next two sub-sections.
7.2.2. Prosecutorial Ethics and Individual Integrity
I turn now to the individual ethical constraints on a prosecutor at the ICC
and briefly consider the relationship between individual integrity and pros-
ecutorial ethics. 65 In the previous sub-section, I argued that integrity re-
quires moral commitments of a particular substance, and that virtue ethics
is insufficient to flesh out that substance. Here, I frame substantive prose-
cutorial obligations at the ICC in terms of deontological and consequential-
ist norms. I then identify specific legal rules for ethical conduct that apply
to individuals in the OTP.
64
No. 93, Torkel Opsahl Academic EPublisher, 2018, p. 3 (https://www.legal-tools.org/doc/
e550f7).
65
For a comprehensive analysis of prosecutorial ethics at the ICC, see Alexander Heinze and
Shannon Fyfe, “Prosecutorial Ethics and Preliminary Examinations at the ICC”, in Morten
Bergsmo and Carsten Stahn (eds.), Quality Control in Preliminary Examination: Volume 2,
Torkel Opsahl Academic EPublisher, Brussels, 2018 (https://www.legal-tools.org/doc/
dff594), in which we call for a more systematic approach to ethics in international criminal
justice.

7.2.2.1. Normative Ethics

A prosecutor’s individual ethical obligations toward her role in the criminal
justice system can be thought of in terms of deontological norms and con-
sequentialist norms. Deontological norms identify actions as obligatory,
prohibited, or permitted (deontic verdicts) based on the intrinsic nature of
the actions and regardless of the outcomes they produce. Kant argues that
one should: “[a]ct so that you use humanity, as much in your own person as
in the person of every other, always at the same time as end and never
merely as means”. 66 A prosecutor “who is focused on deontological norms
will be concerned with the way choices are made, defendants’ rights are
respected, and trials are conducted, independent of the end-states the trials
produce”. 67
Luban argues for a view of integrity for lawyers that appears to align
individual integrity with deontological norms. He claims that a lawyer’s
objective should always be to protect the human dignity of the client. Thus,
prosecutors must make choices with the aim of treating individuals as sub-
jects of their experience and their testimony, and as individuals, rather than
as entities that can be “entirely subsumed into larger communities” if doing
so serves some desirable end-state. 68 Human dignity, according to Luban,
requires that individuals not be treated “as an instrument of [their] own
condemnation”. 69 In order to uphold this standard of human dignity, prose-
cutors must never humiliate victims or defendants, or treat them as mere
resources to be used in furtherance of a particular outcome. 70
Yet, a prosecutor who is solely focused on the intrinsic nature of her
actions may not consider necessary strategic aspects of a trial, and this
could lead to consistent failures to achieve substantive results, and ulti-
mately the downfall of the criminal justice institution altogether. Enter con-
sequentialist norms, which identify right actions (deontic verdicts) based
solely on the outcomes they produce. So, a prosecutor who aims to reach
the “the correct substantive outcome in every case, and considers this to be
66
Immanuel Kant, Allen W. Wood (ed. and trans.), Groundwork for the Metaphysics of Morals,
Yale University Press, New Haven, CT, 2002, G4:429.
67
Heinze and Fyfe, 2018, p. 10, see above note 65.
68
David Luban, Legal Ethics and Human Dignity, Cambridge University Press, New York,
2007, p. 88.
69
Ibid.
70
Ibid.

the standard of what constitutes a fair trial, adopts a purely consequentialist

view of her ethical obligations”. 71
However, a prosecutor could also justify dishonest behaviour or of-
fensive treatment of defendants, in pursuit of a desired conviction, if she
adopts purely consequentialist norms as her normative ethical framework.
We could imagine an OTP in which the individual lawyers engage in insid-
ious group-think, justifying actions that violate deontological norms. If the
individuals know that horrific events like genocide or crimes against hu-
manity have occurred, and that there is a lot of evidence for them, this
could lead to the adversarial commitment to making someone pay for the
crimes against the victims, regardless of an individual defendant’s actual
guilt. The individual members of the OTP must keep the power of the sit-
uation in mind, and not allow it to result in a deterministic or fully conse-
quentialist view of prosecution.
Thus, I argue that prosecutors are obligated to take into account both
deontological and consequentialist norms when making decisions. Individ-
ual integrity for prosecutors requires reflection on substantive moral values,
and deontological and consequentialist norms, but also an awareness of the
human tendency to justify behaviour that should not be justified in order to
avoid cognitive dissonance. Individual integrity requires one to keep one’s
guiding principles intact, but not by justifying immoral decisions. Deonto-
logical constraints (and the corresponding demands of individual integrity)
will therefore always apply, as a prosecutor is never permitted to engage in
deception in order to obtain a conviction. Yet sometimes a prosecutor, and
the ICC Prosecutor in particular, may also be obligated to take into account
the end-states that are reasonably expected to be produced by her decisions.
We now have two sources informing the decision-making of individ-
uals who work at the OTP, which are the structural and substantive re-
quirements of integrity, and consequentialist and deontological considera-
tions. One might think that the wealth of ‘obligations’ will paralyse actors
in a legal justice system, as it might be argued that there are too many con-
siderations informing any given decision. I would counter that if the aim of
ethics is to issue deontic verdicts, we must have specific considerations in
order to obtain those verdicts. Again, a broad appeal to morality or integrity
in general terms will not suffice. While there will still be conflicts and epis-
temic challenges in obtaining deontic verdicts at times, we should seek to
71
Heinze and Fyfe, 2018, p. 9, see above note 65.

include as much guidance as possible for individuals working in a legal

justice system.
7.2.2.2. Legal Ethics Rules
I now add the legal ethics rules as the final piece of our normative frame-
work. There are two main texts from which we can draw these require-
ments as they pertain to individuals: the ICC Statute and the OTP Code of
Conduct. 72
7.2.2.2.1. ICC Statute
The ICC Statute contains specific ethical requirements for individuals
working in the OTP in several sections of the Statute. Article 42(3) notes
that the “Prosecutor and the Deputy Prosecutors shall be persons of high
moral character”. 73 Article 45 requires that the Prosecutor and the Deputy
Prosecutors must “make a solemn undertaking in open court to exercise his
or her respective functions impartially and conscientiously” before begin-
ning their duties. 74 The Court maintains a high level of internal independ-
ence, and thus there is also a rule that no OTP member 75 shall “seek or act
on instructions from any external source”. 76 This reaffirms that the OTP
shall exercise its authority on its own behalf, and should not succumb to
external pressure from governments, international organizations, NGOs or
individuals. 77
72
Again, this is a brief overview of these sources of legal ethical rules. For a more comprehen-
sive treatment, please refer to Heinze and Fyfe, 2018, see above note 65.
73
Rome Statute of the International Criminal Court, adopted 17 July 1998, entry into force 1
July 2002, Article 42(3) (‘ICC Statute’) (http://www.legal-tools.org/doc/7b9af9/).
74
Ibid., Article 45.
75
This provision applies to the Prosecutor, the Deputy Prosecutors, staff and gratis personal;
see William A. Schabas, The International Criminal Court: A Commentary on the Rome
Statute, second edition, Oxford University Press, 2016, p. 740.
76
ICC Statute, Article 42(1) clause 3, see above note 73. Cf. also Yvonne McDermott, “Article
42”, in Mark Klamberg, Commentary on the Law of the International Criminal Court, Tor-
kel Opsahl Academic EPublisher, Brussels, 2017, para. 1 (https://www.legal-tools.org/doc/
aa0e2b/).
77
ICC, Situation in the Democratic Republic of the Congo, Pre-Trial Chamber, Prosecution’s
Reply on the Applications for Participation 01/04-1/dp to 01/04-6/dp, 15 August 2005, ICC-
01/04-84, para. 32 (http://www.legal-tools.org/doc/4aa811/); see also ICC, Staff Rules of the
International Criminal Court, adopted 21 April 2005, entry into force 3 December 2005,
Rule 101.3(a) (http://www.legal-tools.org/doc/10f5c7/) (“Staff members shall ensure their
independence from any person, entity or authority outside the Court.”).

As for the OTP’s external independence, the Prosecutor and Deputy

Prosecutors must not engage in any activity that is likely to interfere with
their prosecutorial functions or affect confidence in their independence. 78
This requirement is deontological, in that it requires that members of the
OTP hold themselves to a high standard and refuse to permit others to bias
their decisions. Yet, it also reflects a consequentialist concern about the
likely result – unfairness – of permitting such biases to influence the indi-
viduals who work at the OTP.
7.2.2.2.2. OTP Code of Conduct
The ICC also has Codes of Conduct that ensure the compliance of lawyers
with ethical rules and values. Rule 9 of the ICC Rules of Procedure and
Evidence provides that the Prosecutor is responsible for governing “the
operation of the office”, including whether or not the OTP would have a
code of conduct and regulations. 79 The OTP finally published regulations
on 23 April 2009, and on 5 September 2013, the OTP Code was adopted to
regulate the ethical conduct of the individuals working at the OTP. 80 Prior
to 2013, there was no set of ethical standards “specifically regulat[ing] the
conduct of members of the OTP”. 81 Many of the rules and regulations
listed in the following sub-sections, which were in place prior to the adop-
tion of the OTP Code, were “general in scope and not tailored to apply to
the specific role that the OTP plays at the ICC and the specific obligations
and duties which that role entails”. 82
The OTP Code includes many general deontological constraints on
the conduct of the OTP, and virtues that relate to individual integrity, which
are also applied to other counsel acting before the ICC, such as those relat-
78
ICC Statute, Article 42(5), see above note 73.
79
See Theresa Roosevelt, “Ethics for the Ethical: A Code of Conduct for the International
Criminal Court Office of the Prosecutor”, in Georgetown Journal of Legal Ethics, 2011, vol.
24, no. 1, p. 840.
80
See Alexander Heinze, International Criminal Procedure and Disclosure, Duncker & Hum-
blot, Berlin, 2014, pp. 454 ff.
81
Lawrence Pacewicz, “Introductory Note to International Criminal Court Code of Conduct
for the Office of the Prosecutor”, in International Legal Materials, 2014, vol. 53, no. 2,
p. 397. For a thorough overview by a former insider, see Salim A. Nakhjavani, “The Origins
and Development of the Code of Conduct”, in Morten Bergsmo, Klaus Rackwitz and SONG
Tianying (eds.), Historical Origins of International Criminal Law: Volume 5, Torkel Opsahl
Academic EPublisher, Brussels, 2017, pp. 951–1006 (https://www.toaep.org/ps-pdf/24-
bergsmo-rackwitz-song).
82
Ibid.

ed to faithfulness, conscientiousness, impartiality, independence, confiden-

tiality, and conflicts of interest. 83 The OTP Code contains other deontologi-
cal constraints on or demands for individual integrity in the effective inves-
tigation and prosecution practices of the OTP, including the requirements to
“act with competence and diligence, make impartial judgments based on
the evidence and consider foremost the interests of justice in determining
whether or not to proceed” and to “fully respect the rights of persons under
investigation and the accused and ensure that proceedings are conducted in
a fair manner”. 84
Arguably, these rules do not add anything substantive to our norma-
tive framework, but they do provide concrete legal obligations for prosecu-
tors that align with the framework. Now that we have filled in the relevant
aspects of the framework for individual integrity at the OTP, we can turn to
individual integrity for judges.
7.2.3. Judicial Ethics and Individual Integrity
In this section, I refrain from reiterating the entire normative framework
from the previous sub-section. Instead, I identify notable differences be-
tween prosecutorial ethical obligations and judicial ethical obligations in
terms of the different sorts of decisions that must be made by prosecutors
and judges. I then identify the specific legal rules for ethical conduct that
apply to individual judges.
7.2.3.1. Normative Ethics
A judge’s individual ethical obligations toward her role in the criminal jus-
tice system can also be thought of in terms of deontological norms and
consequentialist norms. A judge focused on deontological norms will, like
her prosecutor counterpart, be concerned with the way decisions are made,
defendants’ rights are respected, and trials are conducted, independent of
the end-states produced by the trials. A judge who is focused on consequen-
tialist norms may utilize her discretion or read the evidence in a particular
way that veers a case toward a particular outcome, which may or may not
be warranted (or permissible) depending on the circumstances. Although
Luban’s account of integrity is aimed at lawyers who represent clients ra-
83
ICC, “OTP Code”, in Code of Conduct for the Office of the Prosecutor, 5 September 2013,
chap. 2 (http://www.legal-tools.org/doc/3e11eb/).
84
Ibid., chap. 3, sect. 2.

ther than at judges, 85 a judge who acts with integrity should also treat eve-
ryone who comes before her with dignity, and avoid acting in ways that
humiliate victims, defendants, or their representation.
Like prosecutors, judges are obligated to take into account both de-
ontological and consequentialist norms when making decisions. Individual
integrity for judges requires reflection on substantive moral values, and
deontological and consequentialist norms. Deontological constraints (and
the corresponding demands of individual integrity) will therefore always
apply, but sometimes a judge may also be obligated to take into account the
end-states that are reasonably expected to be produced by her decisions,
both in judgments and in the courtroom.
We now have established the two sources informing the decision-
making of judges, which are the same as those informing prosecutors: the
structural and substantive requirements of integrity, and consequentialist
and deontological considerations.
7.2.3.2. Legal Ethical Rules
Here, I add the legal ethics rules as the final piece of our normative frame-
work for judges. There are two main texts from which we can draw these
requirements as they pertain to individual judges: the ICC Statute and the
Judicial Code of Conduct. 86
7.2.3.2.1. ICC Statute
The ICC Statute contains specific ethical requirements for individual judg-
es at the ICC in several sections of the Statute. Article 36(3)(a) notes that
“judges shall be chosen from among persons of high moral character, im-
partiality and integrity who possess the qualifications required in their re-
spective States for appointment to the highest judicial offices”. 87
Judges are required to be independent in the performance of their ju-
dicial functions, as outlined in Article 40, which further explains that judg-
es “shall not engage in any activity which is likely to interfere with their
judicial functions or to affect confidence in their independence”, and that
they are not permitted to have any other professional occupation during
85
See Luban, 2007, see above note 68.
86
This is also a brief overview of the sources of legal ethical rules for judges.
87
ICC Statute, Article 36(3)(a), see above note 73.

their tenure on the Court. 88 If there are concerns about a judge’s impartiali-
ty with respect to a given case, he or she will be disqualified from the case
pursuant to the procedure outlined under Article 41. 89 Article 45 requires
that judges must “make a solemn undertaking in open court to exercise his
or her respective functions impartially and conscientiously” before begin-
ning their duties. 90
7.2.3.2.2. Judicial Code of Conduct
The Code of Judicial Ethics (‘Judicial Code’) has been adopted to further
regulate the ethical obligations of judges at the ICC. The Judicial Code,
like the OTP Code, includes many general deontological constraints on the
conduct of judges, and virtues that relate to individual integrity, such as
those related to impartiality, independence, diligence, proper conduct, and
confidentiality. 91 The Judicial Code contains other deontological con-
straints on or demands for individual integrity to ensure the “legitimacy
and effectiveness of the international judicial process”, including require-
ments to “avoid any conflict of interest, or being placed in a situation
which might reasonably be perceived as giving rise to a conflict of inter-
est”, 92 and to “conduct themselves with probity and integrity in accordance
with their office, thereby enhancing public confidence in the judiciary”. 93
In this section, I constructed a multi-level normative framework for
understanding the ethical obligations for individual prosecutors and judges
at the ICC. I generated the normative framework by working through the
meaning of individual integrity as a substantive and structural concept,
identifying both deontological and consequentialist constraints that inform
prosecutorial and judicial decision-making, and laying out the legal rules
that govern the ethical obligations of prosecutors and judges. When tasked
with making decisions as individuals, each level of the framework should
feature in ensuring that individuals at the ICC act with integrity. We will
turn now to understanding institutional integrity at the ICC.
88
Ibid., Article 40.
89
Ibid., Article 41.
90
Ibid., Article 45.
91
See ICC, Code of Judicial Ethics, 9 March 2005, ICC-BD/02-01-05 (https://www.legal-
tools.org/doc/383f8f).
92
Ibid., Article 4.
93
Ibid., Article 5.

7.3. Institutional Integrity

7.3.1. Integrity for Institutional Actors
One way to think about the integrity (or any other characteristic) of institu-
tional actors is to think of institutions as possessing an aggregation of the
individuals which make up the organization. If there is nothing (or little)
more to, say, a corporate board of directors than the individuals who sit on
the board, then we can reduce the concept of the board of directors to these
individuals, with no remainder. On an individualist account of an organiza-
tion, individuals “are not, when brought together, converted into another
kind of substance”, 94 but they remain individuals. So in a sense, a reference
to the integrity of the board of directors would merely refer to the aggrega-
tion of the individual integrity of each director.
However, it is incoherent to think of most organizations in this lim-
ited manner. An organization of persons that constitutes a group or institu-
tion must engage in collective decision-making, and the outputs of that or-
ganization are collective decisions, to some extent. It may be that one indi-
vidual represents an organization and has the final decision-making power,
or it may be that there is a collective decision-making procedure that re-
sults in a ‘judgment’ or decision on behalf of an organization. Regardless,
while the individual integrity of the members of an organization may be
necessary for institutional integrity, it is not sufficient.
Another feature of institutional integrity that arguably distinguishes
institutional integrity from individual integrity is the impact on the legiti-
macy of the entity. Although there are some views of individual integrity
that claim individuals who do not act with integrity do not act as agents at
all, 95 this view is much too radical, by my lights. Individuals who fail to act
with integrity may not be trusted or taken seriously by their friends and col-
leagues, but they will go on existing despite their lack of integrity. Institu-
tions, on the other hand, may collapse without integrity. It may be that the
institution becomes illegitimate because it lacks integrity, if integrity is a
crucial feature of the institution’s identity or mandate, and it may cease to
function. Or it may be that the perception of the institution as illegitimate
causes the institution to collapse due to lack of support from external actors.
In either case, the loss of integrity may prove fatal to an institution.
94
John Stuart Mill, A System of Logic, book VI, chap. 7, §1.
95
See Christine M. Korsgaard, Self-Constitution: Agency, Identity, and Integrity, Oxford Uni-
versity Press, Oxford, 2009.

7.3.1.1. Substantive Integrity of Institutional Actors

I begin in this section with the intuition we often have that the concept of
integrity relates to its substance, because it involves a fairly straightforward
set of moves from individual integrity to institutional integrity. It is, how-
ever, possible to act with complete structural integrity and yet still act in
ways that most would find to be intuitively immoral. On my view, it cannot
be the case that an institution aimed at something intuitively immoral can
act with substantive integrity, and thus there must be substantive con-
straints on what it means to act with institutional integrity.
As noted above, the individual integrity of the members of an organ-
ization is likely a necessary feature of an organization with institutional
integrity. Certainly, an institutional actor must operate with a commitment
to some moral principles, whether those moral principles are explicitly out-
lined in the governing documentation of the organization, or they are acci-
dentally maintained by the individuals who make up the body of the organ-
ization. While an organization likely cannot maintain structural institutional
integrity by accident, it seems possible that the moral content underpinning
the structural integrity could come about by accident. This is because not
all organizations will have explicit statements about their moral principles
and values, but they will nearly always have explicit statements regarding
the aims, purposes, and general structure of the organization. An institution
will fail to meet a test for institutional integrity, regardless of structural in-
tegrity in terms of cohesion or integration, if it operates pursuant to a clear-
ly repugnant moral commitment (such as the promotion of genocide). Con-
versely, the substantive integrity requirement for an institutional actor may
be met by encouraging individuals who make up the organization to act
virtuously (in a broad sense), or it may be met by explicitly outlining the
virtues that are crucial to the aims of the institution, or it may be met by
constructing a set of procedures to ensure that institutional decision-making
is based on ‘objectively good reasons’ or an ‘objective moral purpose’.
7.3.1.2. Structural Integrity of Institutional Actors
The structural integrity of institutional actors, like individual actors, can be
understood as a formal relation an institution has to itself, between parts of
itself (sub-institutions or individuals), or with other institutions. As with
individual structural integrity, I do not find it necessary to adopt one view
to the exclusion of others. Each of the following conceptions can contribute
to an understanding of institutional decision-making with integrity.

7.3.1.2.1. Identity and Commitments

Recall that Williams’ view of integrity is based on ‘identity-conferring
commitments’, which are “the condition[s] of my existence, in the sense
that unless I am propelled forward by the conatus of desire, project and in-
terest, it is unclear why I should go on at all”. 96 If an individual abandons
such a commitment, according to Williams, then the individual begins to
lose what gives their life its moral identity. From an institutional perspec-
tive, it is coherent to think of organizations coming into existence for rea-
sons, in order to achieve a discrete purpose or further a particular project.
Even more so than with individuals, an institution that abandons an identi-
ty-conferring commitment may lose what gives the institution its identity.
This may, in turn, cause the institution to lose legitimacy or collapse alto-
gether. Depending on the type of organization or institution, it may be able
to reorganize itself under different ‘conditions of existence’. But for pur-
poses of this chapter, the institutions in question are unlikely to survive a
significant change to their identity-conferring commitments.
7.3.1.2.2. Wholeness and Integration
On a related view, integrity is understood in terms of wholeness and inte-
gration. Taylor’s account of integrity ascribes the trait to one who ‘keeps
his self intact’, which means an individual “will not ignore relevant evi-
dence, he will be consistent in his behaviour, he will not act on reasons
which, given the circumstances, are insufficient reasons for action”. 97 Her
view also requires that an individual have the right relationship with the
past. 98 An institution can be understood through this lens as well. Assuming
that the institution was created with a sense of what it is meant to do, or it
grows to develop such a sense, an institution can act rationally to maintain
this sense of institutional self, and can discourage conflict or disintegration
between sub-institutions and/or individuals who make up the institution.
Luban’s view of genuine integrity maps onto institutions as well. Like an
individual, an institution can be thought of as having structural integrity if
96
Williams, 1981, “Persons”, p. 12, see above note 9.
97
Taylor, 1981, p. 148, see above note 14.
98
Ibid., p. 149.

it is “untouched, unsullied”. 99 An institution with integrity keeps its princi-

ples intact. 100
7.3.1.2.3. Standing for Something
Calhoun’s understanding of integrity as ‘standing for something’ is useful
on two levels. On the institutional level, the social virtue of integrity can
refer to an institution’s decision to stand up for itself and its principles in
the face of conflicting views from external institutions or individuals. But
Calhoun’s view can also be used to understand how individual components
of the institution engage in collective decision-making. If the institution has
a common project, individuals are tasked with “acting on one’s own best
judgment” while engaging in debate with other individuals within the insti-
tution. 101 As noted earlier, Calhoun’s account of integrity speaks to “why
we care that persons have the courage of their convictions” when engaged
in deliberation with other members of a community. 102
7.3.1.3. Structural Integrity of Institutional Judicial Actors
It is worth adding an additional normative sub-section addressing the struc-
tural integrity of institutional judicial actors in particular, due to their indi-
vidual or collective power within a criminal justice system. It has been ar-
gued that the output of a judicial body ought to reflect a particular kind of
integrity in the structural sense of the term. I will look at two sources of
this argument: Dworkin’s philosophical argument that we should under-
stand law as integrity, and the Australian legal principle of ‘institutional
integrity’.
7.3.1.3.1. Law as Integrity (Dworkin)
In Law’s Empire, Ronald Dworkin gives us a model of adjudication known
as ‘law as integrity’. 103 This view secures a “kind of equality among citi-
zens that makes their community more genuine and improves its moral jus-
tification for exercising the political power it does”. 104 It does this because
it sees that rights and responsibilities of individuals “flow from past deci-
99
See Luban, 2003, p. 298, see above note 25.
100
Ibid.
101
Calhoun, 1995, p. 256, see above note 44.
102
Ibid., p. 259.
103
See Ronald Dworkin, Law’s Empire, Harvard University Press, Cambridge, 1986.
104
Ibid., p. 96.

sions” and thus “count as legal, not just when they are explicit in these de-
cisions but also when they follow from the principles of personal and polit-
ical morality the explicit decisions presuppose by way of justification”. 105
Individuals are entitled to this extension of past decisions, “even when
judges profoundly disagree about what this means”. 106
Judges, then, are required to “identify legal rights and duties, so far
as possible, on the assumption that they were all created by a single au-
thor – the community personified – expressing a coherent conception of
justice and fairness”. 107 Dworkin uses the analogy of a chain novel to de-
scribe this process of adjudication, and he sets up a scenario in which a
group of novelists seeks to write a novel together. 108 Each novelist is tasked
with interpreting the chapters that have been written previously before
writing a new chapter. 109 Dworkin depicts how each novelist “has the job
of writing his chapter so as to make the novel being constructed the best it
can be, and the complexity of this task models the complexity of deciding a
hard case under law as integrity”. 110 The novelists, according to Dworkin,
“aim jointly to create, so far as they can, a single unified novel that is the
best it can be”. 111 A judge, similarly, must try to create a single, unified sto-
ry about the law, and this means that
the actual political history of his community will sometimes
check his other political convictions in his overall interpretive
judgment. If he does not – if his threshold of fit is wholly de-
rivative from and adjustable to his convictions of justice, so
that the latter automatically provide an eligible interpretation –
then he cannot claim in good faith to be interpreting his legal
practice at all. 112
105
Ibid.
106
Ibid., p. 134.
107
Ibid., p. 225.
108
Ibid., p. 229.
109
Ibid.
110
Ibid.
111
Ibid.
112
Ibid., p. 255.

7.3.1.3.2. Institutional Integrity (Australia)

In Australia, there is a constitutional principle known as the institutional
integrity principle or the Kable doctrine. 113 This principle developed out of
a 1996 case in which a majority of the High Court found that a function
furnished by the Community Protection Act 1994 to the Supreme Court of
New South Wales was invalid because it was incompatible with the institu-
tional integrity of the Australian judiciary. 114 In Kable, the High Court’s
assessment was based upon “the effect of the impugned legislation on the
capacity of the institution to be a fit repository for Commonwealth jurisdic-
tion”. 115 The High Court’s majority opinion notes that “the underlying con-
cern was to maintain public confidence in the independence of State
courts”. 116 While the details of this doctrine are not particularly relevant for
the purposes of this chapter, it is worth briefly noting that Australia main-
tains a constitutional principle that allows courts to overturn legislation in
order to maintain the integrity (in the sense of integration or wholeness) of
a judicial institution.
As with individual integrity, institutional integrity requires both
structural and substantive components in order to obtain. There are argua-
bly several ways of meeting the substantive requirements, through individ-
ual moral commitments or through explicit institutional moral commit-
ments, but structural integrity may be harder to obtain due to the multi-
level demands for integration, commitment to identity, and/or taking a
principled stand. In the next sub-section, we will consider what the norma-
tive framework for institutional integrity looks like for the OTP, judges,
and the ICC as a whole.
7.3.2. Integrity of the OTP
The next step is to think about institutional integrity of the OTP, which in-
volves the integrity of the individuals who make up the OTP, in light of the
113
See Chris Steytler and Iain Field, “The Institutional Integrity Principle: Where are We Now,
and Where are We Headed”, in University of Western Australia Law Review, 2011, vol. 35,
pp. 227–264.
114
Ibid., p. 229; see also High Court of Australia, Kable v. Director of Public Prosecutions
(NSW), 12 September 1996, 189 CLR 51.
115
Steytler and Field, 2011, p. 229, see above note 113; see also High Court of Australia, Gypsy
Jokers Motorcycle Club Inc v. Commissioner of Police, 2007, 33 WAR 245, p. 268.
116
Peter Johnston and Rohan Hardcastle, “State Courts: The Limits of Kable”, in Sydney Law
Review, 1998, vol. 20, p. 220; see also Kable, 1996, p. 98, see above note 114.

culture of integrity that is promoted by the leadership. While this goes be-
yond individual integrity, especially with respect to collective decision-
making, it is still cashed out, in some ways, in terms of the virtues and eth-
ical considerations that are adopted by and reflected in the individual ac-
tions of the OTP. Additionally, the OTP is structured with the Prosecutor at
the top, thus she is in a position to individually overrule any decisions that
are made ‘collectively’.
The deontological and consequentialist considerations are the same
whether we think about the OTP as the Prosecutor or as an institution pre-
sided over by the Prosecutor and made up of deputy prosecutors and staff.
Thus, I do not rehash the normative ethical framework presented in Section
7.2.2.1. I also will not reiterate the specific rules outlining individual ethi-
cal obligations in Section 7.2.2.2., but I briefly identify some ethical rules
that could be seen as applying to the OTP as an institution rather than as
represented by an individual. This will also include a short discussion of
the OTP strategy and policy papers.
7.3.2.1. ICC Statute
The ICC Statute contains specific ethical requirements for the OTP as an
institution in several sections of the Statute. Article 44 provides for the ap-
pointment of staff, including the requirement that the OTP “shall ensure the
highest standards of efficiency, competency and integrity” in its employ-
ment of staff. 117 Article 54(1) relates to the investigations phase and re-
quires that the Prosecutor “investigate incriminating and exonerating cir-
cumstances equally”, 118 take measures to “respect the interests and person-
al circumstances of victims and witnesses, including age, gender as defined
in Article 7, paragraph 3, and health, and take into account the nature of the
crime, in particular where it involves sexual violence, gender violence or
violence against children” in the investigations, 119 and “[f]ully respect the
rights of persons arising under this Statute”. 120 The obligations under Arti-
cle 54(1) are deontological, where they correspond to specific procedural
requirements or the rights of individuals, and they also reflect the demands
of individual integrity regarding respect for the dignity of all persons. Yet
the OTP is also obligated to consider the results of the Prosecutor’s discre-
117
118
Ibid., Article 54(1)(a).
119
Ibid., Article 54(1)(b).
120
Ibid., Article 54(1)(c).

tionary choices when balancing deontological obligations to defendants

with deontological obligations to victims and witnesses.
There are other ethical obligations that the OTP incurs indirectly,
such as those from sections of the ICC Statute that grant rights on other
parties. Article 55, for instance, provides for specific rights on the part of
persons during an investigation. These rights create corresponding deonto-
logical obligations on the part of the OTP, such as the obligation that the
OTP not subject an individual “to arbitrary arrest or detention”, nor deprive
an individual “of his or her liberty except on such grounds and in accord-
ance with such procedures as are established in this Statute”. 121
7.3.2.2. OTP Code of Conduct
The OTP Code is largely directed at the conduct of individuals, but it in-
cludes several features that are applicable to the OTP as an institution.
Chapter 3 outlines the duties of the OTP as they pertain to the OTP’s duty
to objectively seek the truth under Article 54(1)(a) of the ICC Statute, the
OTP’s obligation to ensure effective investigation and prosecution under
Article 54(1)(b) of the ICC Statute, rules for disclosing and handling in-
formation and evidence, and the obligation to ensure security for anyone
who interacts with the OTP. 122 Chapter 4, which addresses working rela-
tions within the OTP, with other sub-institutions within the Court, and with
other individuals, includes both individual and institutional requirements
for integrity. While these constraints are largely deontological, they can
also be seen as consequentialist in that they attempt to protect individuals
and the OTP from negative outcomes and ensure ongoing co-operation be-
tween sub-institutions and between individuals.
7.3.2.3. Strategy and Policy Papers
The OTP has also adopted strategy papers, which clarify the OTP’s strate-
gic objectives for a time period of three to four years, as well as policy pa-
pers, which address particular fundamental issues on which the OTP seeks
to provide more clarity and transparency. Regulation 14 of the Regulations
of the OTP requires that the OTP make public its strategy and make use of
policy papers that reflect the key principles and criteria of this strategy. 123
121
Ibid., Article 55(1)(d).
122
OTP Code, chap. 3., see above note 83.
123
This corresponds to No. 17 of the UN Guidelines on the Role of Prosecutors (“In countries
where prosecutors are vested with discretionary functions, the law or published rules or reg-

The practice involves a broad ethical obligation on the part of the OTP,
which could be considered deontological, in that the duty might be seen as
reflective of an obligation to be transparent with the international commu-
nity, the general public, and all possible defendants that could come before
the ICC. Such a commitment to transparency can also be seen as conse-
quentialist, as one of its aims might be to support the appearance of the le-
gitimacy of the OTP and the Court as a whole. 124
7.3.3. Integrity of the Judiciary
Turning to the judiciary at the ICC, we can begin by thinking about its in-
stitutional integrity in terms of the integrity of the individuals who serve as
judges, in light of the culture of integrity that exists in Chambers. The insti-
tutional integrity will be, again, cashed out in some ways in terms of the
virtues and ethical considerations that are adopted by and reflected in the
individual actions of judges. Yet, collective decision-making will play a
much greater role in judicial settings than it does in the OTP. The institu-
tional integrity of the judiciary will involve more than just the aggregation
of the integrity of individual judges. Namely, it will require something akin
to Dworkin’s adjudicative theory of law as integrity. It is also worth noting
that there is a difference between the judges who sign on to a majority
opinion, which represents the decision of the judiciary as an institution, and
those who sign on to a dissenting opinion, who arguably maintain their sta-
tus as individual judges since they do not represent the institution.
The deontological and consequentialist considerations considered in
Sections 7.2.1. and 7.2.3.1. are largely the same whether we think about
judges as individuals or as institutions engaged in collective decision-
making, and the individual ethical rules are contained in Section 7.2.3.2. So,
I turn directly to identifying ethical rules that could be seen as applying to
the judiciary as an institution rather than as individual judges.
ulations shall provide guidelines to enhance fairness and consistency of approach in taking
decisions in the prosecution process, including institution or waiver of prosecution.”). An
example is ICC-OTP, OTP Report on Preliminary Examination Activities 2013, 25 Novem-
ber 2013 (http://www.legal-tools.org/doc/dbf75e/), which sets out the principles and criteria
of preliminary examinations (paras. 1 et seq.) and aims to promote transparency (para. 15).
124
Stahn appears to view transparency (including publicity) as involving consequentialist con-
siderations, when he points out: “Publicity is in line with the public nature of criminal pro-
ceedings. It may facilitate the alert effect and strengthen prevention”. Carsten Stahn,
“Damned If You Do, Damned If You Don’t: Challenges and Critiques of Preliminary Exam-
inations at the ICC”, in Journal of International Criminal Justice, 2017, vol. 15, no. 3, p. 18.

7.3.3.1. ICC Statute

The ICC Statute contains specific ethical requirements for the judiciary as
an institution in several sections of the Statute. Articles 60 and 61 require
that the Pre-Trial Chamber ensure procedural protections for defendants. 125
In Article 64, the Trial Chamber is called to “ensure that a trial is fair and
expeditious and is conducted with full respect for the rights of the accused
and due regard for the protection of victims and witnesses”. 126 Article 68
provides for the protection of victims and witnesses who participate in the
court proceedings, and some of the protections are to be ensured by the ju-
diciary. 127 The discretionary aspects of evidence admissibility are outlined
in Article 69, which establishes several specific obligations on the part of
the judiciary. 128 Article 74 outlines the requirements for judges in making a
decision on a case, 129 while Articles 76 and 78 outline the requirements for
judges in handing down a sentence following a conviction. 130 In the event
of an appeal, Articles 83 and 84 outline the obligations of judges who make
up the Appeals Chamber. 131
7.3.4. Integrity of the Court and International Criminal Law
A further move we can make at this point is from the integrity of sub-
institutions like the OTP and the judiciary to the institutional integrity of
the ICC as a whole. This cannot be separated from the individual integrity
of those who work at the institution, nor can it be separated from the integ-
rity of institutions like the OTP and the judiciary. The institutional integrity
of the ICC is fragile, as the failure of any individual or sub-institution
could threaten the integrity of the ICC as a whole. One of the consequen-
tialist considerations that individuals and sub-institutions must take into
account, therefore, is whether or not a given individual or collective deci-
sion is likely to threaten the continued existence of the institution of the
ICC – which would also threaten the greater institution of international
criminal law.
125
ICC Statute, Articles 60, 61, see above note 73.
126
Ibid., Article 64.
127
Ibid., Article 68.
128
Ibid., Article 69.
129
Ibid., Article 74.
130
Ibid., Articles 76, 78.
131
Ibid., Articles 83, 84.

It is here that we can see the need for a robust normative ethical
framework to guide individuals and institutions and offer assistance in
reaching deontic verdicts. For these decisions require more than broad
statements about virtue. How could a commitment to ‘act courageously’
help an individual decide whether or not to take a particular action? This
actually requires an individual or collective to make a prediction about the
future, which in turn requires courage, both structural and substantive in-
tegrity, balancing ethical considerations, and also an understanding of the
institution as a whole. The accounts that we have from Taylor and Luban of
integrity as wholeness are particularly salient here, applied to both the in-
dividual and the institution, in terms of demanding decisions that are un-
likely to threaten the continued existence of the institution. If the institution
is to remain, it must also remain focused on identity-conferring commit-
ments (in the vein of Williams), such as those listed in the Preamble to the
ICC Statute, including the idea that “the most serious crimes of concern to
the international community as a whole must not go unpunished and that
their effective prosecution must be ensured by taking measures at the na-
tional level and by enhancing international cooperation”, 132 the determina-
tion to “put an end to impunity for the perpetrators of these crimes and thus
to contribute to the prevention of such crimes”, 133 and the resolution to
“guarantee lasting respect for and the enforcement of international jus-
tice”. 134
Now that I have examined the complete normative ethical framework
for both individual and institutional integrity at the ICC, I consider what
the framework implies about the Bemba case introduced at the beginning of
the chapter.
7.4. Case Study: The Bemba Acquittal
My aim in this final section is to reveal the challenges inherent in a more
complex assessment of individual or institutional integrity, despite the ex-
istence of a comprehensive normative ethical framework. I do not intend to
offer a meticulous analysis of the Bemba judgement at the trial level or ei-
ther opinion issued by the Appeals Chamber. Rather, I sketch out the fea-
132
Ibid., Preamble.
133
Ibid.
134
Ibid.

tures of the appeal that bear directly on issues of individual and institution-
al integrity at the ICC.
7.4.1. Bemba Judgment and Appeal
As noted at the beginning of this chapter, the Appeals Chamber of the ICC
acquitted Bemba of the charges of war crimes and crimes against humanity
in June 2018, overturning the decision of Trial Chamber III to convict the
defendant. The majority adopted the standard of review on appeal that the
Appeals Chamber must overturn factual findings of the Trial Chamber if
they can reasonably be called into doubt. 135 The opinion of the majority of
the Appeals Chamber focused on two grounds of Bemba’s appeal: first, that
the conviction exceeded the charges, and second, that Bemba was not liable
as a superior. 136
7.4.1.1. Standard of Review – Dissenting Opinion
In the dissenting opinion, the judges challenged the majority’s view that
that Appeals Chamber must overturn factual findings of the Trial Chamber
if they can reasonably be called into doubt. 137 They viewed the adoption of
this standard as a significant and unexplained departure from the conven-
tional standard of review for factual errors applied to date by the Appeals
Chamber, as well as of all other international and internationalised courts
and tribunals. 138 The dissenting opinion states that it is not sufficient that
there are “serious doubts” about a factual finding entered by the Trial
Chamber. 139 In case of doubt, they argued that the Appeals Chamber should
review the evidence supporting the factual findings in question to itself de-
termine the issue or to remand the matter to a trial chamber for that pur-
pose. 140 The dissenting judges would have applied the conventional stand-
ard of appeal in assessing Bemba’s grounds of appeal, which accords some
deference to the Trial Chamber’s findings of fact, and they considered that
135
Judgment, para. 35 et seq., see above note 1.
136
See ibid.
137
ICC, Situation in the Central African Republic, Prosecutor v. Jean-Pierre Bemba Gombo,
Appeals Chamber, Dissenting Opinion of Judge Sanji Mmasenono Monageng and Judge Pi-
otr Hofmański to the Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial
Chamber III’s “Judgment pursuant to Article 74 of the Statute”, 8 June 2018, ICC-01/05-
01/08-3636 (‘Dissenting Opinion’) (https://www.legal-tools.org/doc/dc2518).
138
Ibid., paras. 2–18.
139
Ibid., para. 10.
140
Ibid., para. 92.

this modified standard of review has led the majority of the Appeals
Chamber to an erroneous conclusion. 141
7.4.1.2. Second Ground of Appeal – Majority Opinion
On the second ground of appeal, the majority of the Appeals Chamber not-
ed that the Prosecutor provided a “non-exhaustive” list of alleged criminal
acts, including murder, rape, and pillaging, which was then confirmed by
the Pre-Trial Chamber in broad terms. 142 The Prosecutor went on to pro-
vide information on individual criminal acts which had not been expressly
stated in the initial charging document. 143 The Trial Chamber convicted
Bemba of a number of these criminal acts. 144 On appeal, Bemba alleged
that “[n]early two thirds of the underlying acts for which [he] was convict-
ed were not included or improperly included in the Amended Document
Containing the Charges and fall outside the scope of the charges”, 145 and he
asserted that the Trial Chamber erred in relying on these acts for the con-
viction. 146
The majority of the Appeals Chamber found that Bemba’s convic-
tions were for specific acts not substantiated in the Trial Chamber’s convic-
tion document, and that the charging document was too broad to amount to
a meaningful description of the charges against Bemba. 147 Despite the Ap-
peals Chamber’s acknowledgement of amended documents containing
more specific factual allegations against Bemba, the majority of the Ap-
peals Chamber concluded that both the formulation in the operative part of
the Confirmation Decision as well as that in the relevant parts of the Doc-
ument Containing the Charges are too broad to amount to a meaningful
“description” of the charges against Bemba. 148 An amendment to the
charges would have been required to effectuate the more specific factual
allegations. 149 The Appeals Chamber therefore granted this ground of ap-
peal and found, by majority, that the Trial Chamber erred when it convicted
141
Ibid., para. 1.
142
Judgment, para. 75, see above note 1.
143
Ibid., para. 76.
144
Ibid., para. 83.
145
146
Ibid., para. 74.
147
148
Ibid.
149
Ibid., para. 115.

Bemba of acts which did not fall within the “facts and circumstances de-
scribed in the charges”. 150
7.4.1.3. Second Ground of Appeal – Dissenting Opinion
The dissenting judges argued that the Prosecutor’s case against Bemba was
brought by geographical, temporal and other substantive parameters, and
the Pre-Trial Chamber confirmed the charges as such. 151 The Trial Cham-
ber therefore could consider any criminal acts that fell within these parame-
ters, subject to the requirement of proper notice to the accused. 152 The dis-
senting judges considered that the Prosecutor may set broad parameters for
the charges depending on the circumstances of the case she intends to
bring. 153 Therefore, if the Prosecutor formulates the charges broadly, this
means that additional individual criminal acts may be alleged for the pur-
pose of the trial, provided that they fall within the scope of the crimes con-
firmed and provided that the rights of the accused to notice and time for the
preparation of his or her defence are respected. 154 The dissenting judges
considered this description of the facts and circumstances described in the
charges to be adequate, and they would have found that Bemba’s convic-
tion did not exceed the facts and circumstances described in the charges
that were brought against him. 155
7.4.1.4. Third Ground of Appeal – Majority Opinion
With respect to the third ground of appeal, Bemba argued that the Trial
Chamber erred in finding that he failed to take all measures that were nec-
essary and reasonable to prevent or repress the crimes committed by MLC
(the Movement for the Liberation of the Congo) forces, or to submit the
matter to the competent authorities. 156 He made five separate claims re-
garding this error on the part of the Trial Chamber. 157 The majority of the
Appeals Chamber concluded that the Trial Chamber did err in concluding
that Bemba failed to take all necessary and reasonable measures in re-
150
151
Dissenting Opinion, para. 32, see above note 137.
152
Ibid., para. 36.
153
Ibid.
154
Ibid.
155
Ibid., para. 32.
156
Judgment, para. 137, see above note 1.
157
Ibid., para. 30.

sponse to MLC crimes in the CAR, was materially affected by these errors,
and that Bemba cannot be held criminally liable for crimes committed by
MLC troops during the CAR operation. 158 The majority of the Appeals
Chamber found, in several different instances, that the Trial Chamber ig-
nored significant evidence relevant to Bemba’s liability for the crimes
committed by MLC forces. 159
7.4.1.5. Third Ground of Appeal – Dissenting Opinion
The dissenting judges argued that the Trial Chamber’s conclusion that
“Bemba failed to take all necessary and reasonable measures within his
power to prevent or repress the commission of crimes or to refer the matter
to the competent authorities” was in fact supported by the evidence. 160
With respect to this ground of appeal, the dissenting judges could not iden-
tify any errors in the Trial Chamber’s findings or unreasonableness in the
overall conclusions, and thus they would have confirmed the Trial Cham-
ber’s finding that Bemba had failed to take all necessary and reasonable
measures. 161
7.4.2. Integrity of the Prosecutor and the OTP
Prosecutor Bensouda released a statement several days after the judgment
was handed down, in which she expressed concern with the Appeals
Chamber’s decision. 162 She stated that she “must uphold the integrity of the
Court’s processes and accept the outcome”, 163 yet she went on to indicate
her worries that the Appeals Chamber adopted a radical model of appellate
review of factual errors, and a radical view of the manner in which the
Prosecution ought to charge cases involving mass criminality. 164 Prosecutor
Bensouda closed her statement by acknowledging the victims of violence
in the CAR and proclaiming the solidarity of the OTP with these victims. 165
Based on what I have argued thus far, an assessment of Prosecutor
Bensouda’s integrity requires us to consider her structural and substantive
158
Ibid., para. 194.
159
160
Dissenting Opinion, paras. 185–191, see above note 137.
161
Ibid., para. 191.
162
See Statement of ICC Prosecutor, 2018, above note 4.
163
Ibid.
164
Ibid.
165
Ibid.

integrity in light of the relevant ethical norms and rules. It appears that the
Prosecutor sought to reassure the specific victims of violence in the CAR,
and the global community as a whole, that this outcome was undesirable
and that she (as both an individual and the face of the institution of the
OTP) would do everything she could to avoid such an unsatisfying out-
come in the future. At the same time, she attempted to avoid undermining
the institution of the Court by accepting the Appeals Chamber’s decision
and the validity of the processes that lead to the decision.
There is no indication that Prosecutor Bensouda acted based on im-
moral commitments; rather, it appears that she sought to ground the sub-
stance of her actions in the commitments of the ICC as an institution, such
as ending impunity, which is (by my lights) an objectively moral purpose.
She sought to align herself, the OTP, and the Court with arguably identity-
conferring commitments. Presumably, Prosecutor Bensouda made the
statement in light of these aspects of integrity, while considering the de-
mands of deontological and consequentialist norms, and as an intact reflec-
tion of her principles that require her to ‘stand up for’ and support victims.
She certainly aimed to treat victims of violence in the CAR with dignity,
thereby meeting one aspect of Luban’s requirements. In this light, she made
her statement with individual integrity.
Yet, it is not clear that she acted with institutional integrity from the
standpoint of wholeness or integration. But this does not speak to what her
individual integrity should be as the head of the OTP rather than an indi-
vidual, nor does it speak to keeping the principles or harmony of the insti-
tution intact. The OTP’s decisions must reflect reasoned deliberation, not
just loyalty or a commitment to consequentialist considerations. According-
ly, I ultimately conclude that, while the OTP should use its outreach capaci-
ty to assure victims of violence that the Court is not a futile source of inter-
national criminal justice, the Prosecutor should not use the OTP’s official
platform to suggest the opposite, with respect to individual cases or the
Court’s practices as a whole, thereby undermining the integrity of the Court
and the OTP.
7.4.3. Integrity of the Judges and the Appeals Chamber
Without engaging in an extensive analysis of either the majority opinion or
the dissenting opinion, based on the above summary, it may be the case that
some of the judges in the Appeals Chamber also failed to meet the re-
quirements for institutional integrity. We have no evidence that any of the

judges failed to meet the demands of individual integrity, so I will proceed

directly to an analysis of the institutional integrity of the judges who con-
stitute the majority.
On the Dworkinian view of law as integrity, judges must interpret the
law and make decisions as part of the long story of their institutions. The
dissenting judges argue that the standard of review of the Trial Chamber
decision, requirements for charging individuals with crimes, and require-
ments for establishing liability under a theory of command responsibility
each depart significantly from previous jurisprudence, such that the ICC is
no longer telling a consistent, unified story. The majority of the Appeals
Chamber may have failed to express a “coherent conception of justice and
fairness” 166 and failed to take into account the actual political history of its
community and institution. 167 Importantly, the ICC was set up to prosecute
‘big fish’, accused of co-ordinating heinous crimes. There is a good argu-
ment to be made that the majority of the Appeals Chamber may not be act-
ing in good faith in their interpretation due to their failure to consider the
previous decisions and the political history of the Court, and this would
reflect a breach of the requirements for institutional integrity.
7.4.4. Integrity of the Court
If the majority of the Appeals Chamber has, in fact, failed to act with insti-
tutional integrity, this is concerning for the Appeals Chamber, for the future
of appellate jurisprudence at the ICC, and for the Court itself. The potential
casualties of the majority’s decision speak again to Prosecutor Bensouda’s
likely urge to defend the institution of the ICC. Unfortunately, she cannot
be responsible for maintaining the integrity of the entire institution if a sep-
arate branch fails in its own sub-institutional integrity requirements. She
cannot and should not save the institution, even through her commitments
to individual and institutional integrity, if the institution folds from within.
7.5. Conclusion
While Bemba’s recent acquittal by the Appeals Chamber has been a light-
ning rod for those concerned with defending and challenging the legitima-
cy of the ICC and the enterprise of international criminal law, it is im-
portant to remember that it is not our only site for analysing the integrity of
166
Dworkin, 1986, p. 225, see above note 103.
167
Ibid., p. 255.

the institution of the ICC, its sub-institutions, and the individuals who en-
gage in decision-making, with or without integrity, every day. Here, I have
considered two decisions related to this acquittal, disseminated by individ-
uals but purportedly, definitively, or in the face of strong dissent, represent-
ing their respective institutions. My aim has been to provide normative
tools for assessing the integrity of these decisions, and perhaps to better
understand the relationship between institutions and individuals in interna-
tional criminal law.

PART II:
AWARENESS AND CULTURE OF INTEGRITY
8
______
Conformity, Leadership and

the Culture of Integrity at
the International Criminal Court
Brigid Inder *
8.1. Introduction
For public institutions to succeed and to have long-term viability, they must
be motivated by mandate and driven by values. Above all, they must not
betray or compromise the trust and confidence of the public, whose interest
these institutions serve.
In the Policy Brief “Revisiting Integrity in International Justice”,
Morten Bergsmo describes a number of integrity-related challenges before
the International Criminal Court (‘ICC’). 1 Whilst acknowledging the pow-
erful external politics surrounding the ICC, the brief considers the concept
of integrity to be primarily an issue of leadership and recognizes the com-
plex interplay between the exercise of individual integrity and the culture
of an institution.
This chapter examines these issues from a practitioner’s perspective,
with a focus on the respective leadership roles of the ICC and States Parties
in addressing integrity issues within the challenging political, operational
and judicial contexts, which both affect and inform the Court’s work.
The chapter draws upon 16 years of institutional monitoring of the
ICC since its beginning, as well as advocacy efforts urging its development
as an institutionally sound and transparent Court. These initiatives were
based upon the premise that, without an ethical and robust foundation, the
*
Brigid Inder, OBE, a global pioneer of women’s human rights, has served as the co-founder
and Executive Director of the Women's Initiatives for Gender Justice. She is a former Spe-
cial Advisor on Gender to the Prosecutor of the International Criminal Court. She has been
awarded an Order of the British Empire (OBE) in 2014 by Her Majesty, The Queen, for ser-
vices to women’s rights and international justice. She is also the recipient of the inaugural
Bertha von Suttner Peace Prize.
1
No. 93 (2018), Torkel Opsahl Academic EPublisher, Brussels, 2018. (http://www.toaep.org/
pbs-pdf/93-bergsmo/).

ICC would not have the structural integrity needed to implement its chal-
lenging mandate, to withstand the inevitable attacks on its legitimacy, and
to ensure its long-term credibility in the eyes of the public, including the
victims of crimes within its jurisdiction.
The genesis of the ICC’s approach to integrating ethical considera-
tions within the core of its identity is revealed in a review of some of the
factors influencing the development of the Court’s regulatory framework.
This includes an analysis of the staggered and incomplete emergence of its
internal and external control systems, the complicated dynamics between
ICC officials and States Parties that shape the ethical terrain of the Court,
and the challenges associated with institution-building. The chapter relies
primarily on reports, documents and data in the public domain. This mate-
rial is supplemented by first-hand insights and accounts of debates and de-
cisions related to the Court’s organizational development; the chapter re-
calls interactions with former and current Court staff, officials and diplo-
mats over the past decade and a half, including decision-makers responsi-
ble for transforming the Rome Statute into a viable court. It also considers
some of the major institutional integrity-related crises to have affected the
Court in its first two decades.
We rarely examine or consider the ICC through an ethics, or con-
versely, a corruption lens. Its mandate is assumed to elevate the Court be-
yond prosaic questions of compliance, conduct and oversight. Such mana-
gerial aspects are assumed to be either inherent within or secondary to the
pursuit of the Court’s unimpeachable mandate. This chapter suggests that
long-term neglect of the ICC’s institutional integrity has led to practices
that have inevitably called into question the Court’s trustworthiness as a
public institution. Left unaddressed, this neglect may ultimately compro-
mise the ICC’s credibility to exercise its moral and legal authority and im-
plement its mandate.
Authored by a devotee of the Rome Statute and a supporter of the
Court, this chapter is offered in the hope that it may draw attention to the
urgency of the integrity crisis at the ICC and contribute, in some way, to-
wards its organizational transformation.

8. Conformity, Leadership and
the Culture of Integrity at the International Criminal Court
8.2. Mandate and Significance of the ICC

The adoption of the Rome Statute on 17 July 1998, 2 and its entry into force
on 1 July 2002, ushered in a potential new era of international justice and
further globalization of the rule of law as a shared collective standard. No
longer in the realm of aspiration, this ground-breaking treaty established
the first permanent international criminal court with jurisdiction over war
crimes, crimes against humanity, genocide and, more recently, the crime of
aggression. 3 The treaty balances national sovereignty with the responsibil-
ity for the investigation and prosecution of such crimes, while also ensur-
ing that, should States prove unwilling or unable to do so, the ICC would
fill the accountability gap previously occupied by impunity. The Statute’s
promise of a court which would prosecute these most serious crimes was
further elevated by its Article 27, ensuring that Heads of State would not be
immune to such prosecutions, thus opening the way for those historically
beyond the reach of domestic courts to be held accountable through this
new justice mechanism.
The impetus for the negotiations towards an international criminal
court arose from the conflicts and genocides committed in Rwanda in 1994
and the former Yugoslavia between 1991 and 1999. The brutality, scale and
rapid escalation of these conflicts and the commission of genocide on two
continents in quick succession, galvanized the global community to begin
discussions towards the establishment of a permanent court that could
prosecute, and in time, possibly deter perpetrators of mass crimes.
In the intervening years, the impact of armed conflicts around the
world has escalated. According to the United Nations (‘UN’) Secretary-
General, the number of countries currently involved in “violent conflicts”
2
Rome Statute of the International Criminal Court (‘ICC’), 17 July 1998, in force 1 July 2002
(‘ICC Statute’) (https://www.legal-tools.org/doc/7b9af9).
3
Ibid., Articles 5–8. The definitions and the conditions for the exercise of jurisdiction over
crimes of aggression were adopted by consensus at the 2010 Kampala Review Conference
by the States Parties to the Court. The adopted amendments to the Rome Statute included,
inter alia, deletion of Article 5(2) of the Rome Statute that formerly stated: “The Court shall
exercise jurisdiction over the crime of aggression once a provision is adopted in accordance
with articles 121 and 123 defining the crime and setting out the conditions under which the
Court shall exercise jurisdiction with respect to this crime. Such a provision shall be con-
sistent with the relevant provisions of the Charter of the United Nations.”, and additions of
Article 8bis and Article 15bis/ter that defined the “crime of aggression” and conditions on
the exercise of jurisdiction over the “crime of aggression”, respectively. The Court’s juris-
diction over the crime of aggression was activated on 17 July 2018.

is the highest in 30 years, while the number of people killed in conflicts has
risen tenfold since 2005. 4 The volume of “violent situations” classifiable as
wars, based on the number of casualties, has tripled since 2007. 5 In addi-
tion, “low-intensity conflicts” have risen by 60 per cent in the last decade. 6
A recent edition of the Global Peace Index, produced annually by the
Institute for Economics and Peace, found, based on an assessment of 163
States and territories, 7 that conflict levels in the last decade are in contrast
to the trends over the past century, which have moved towards an increase
in peacefulness world-wide. 8 Using 23 qualitative and quantitative indica-
tors, it measures three thematic domains: “Safety and Security”; “Ongoing
Domestic and International Conflict”; and “Militarisation”. 9 According to
the report, all three domains have worsened in recent years, 10 and the key
indicators of peace have deteriorated globally over the past decade, in
steady increments. 11 The current situation appears to be mostly due to long-
term and entrenched conflicts remaining unresolved, and conflicts that
have emerged in the last decade continuing unabated. 12
According to the UN Refugee Agency, 68.5 million people fleeing
conflict, violence and persecution were forcibly displaced in 2017, a record
number. 13 For the first time in history, 1 per cent of the world’s population
is displaced. 14
In light of the current levels of conflict, with a heightened need for
multilateral responses and recognizing the important role of justice within
4
UN News, “Rise in violent conflict shows prevention ‘more necessary than ever’: UN chief”,
Statement made to journalists at the Annual Retreat for International Conflict Mediators and
other high-level decision makers, Norway, 19 June 2018.
5
Ibid.
6
UN News, “Preventing and resolving conflicts must form ‘backbone’ of collective efforts –
UN chief”, Statement made to the United Nations Security Council on the issue of regional
conflicts, New York, 6 December 2018.
7
Institute for Economics and Peace, Global Peace Index 2018: Measuring Peace in a Com-
plex World, Sydney, June 2018, p. 2 (‘Global Peace Index 2018’).
8
Ibid.
9
Ibid.
10
Ibid., p. 10.
11
Ibid., p. 26.
12
Ibid., p. 7.
13
United Nations High Commissioner for Refugees (‘UNHCR’), Global Trends Report:
Forced Displacement in 2017, Geneva, 2018, p. 2.
14
Global Peace Index 2018, p. 33, see above note 7.

the global peace and security framework, the ICC’s mandate is more rele-
vant than ever. Its significance as an impartial arbiter of criminal justice for
the most serious crimes is without parallel in the international multi-lateral
system. There is no other entity in the world entrusted with the mandate to
stand uniquely and exclusively on the side of justice at the complicated in-
tersection of global politics, international humanitarian and criminal law,
and security challenges.
8.3. Credibility in Question
While the ICC’s moral and legal authority is derived from the Rome Statute,
its credibility comes from its perceived impartiality and the manner in
which it undertakes its statutory responsibilities. This is demonstrated pri-
marily in its judicial work – the selection of cases, the fairness of its pro-
ceedings, the demonstrable capacity of the Court to implement its man-
date – as well as in its organizational integrity as a global public institution
for justice. This chapter will focus on the latter aspect of the ICC’s credibil-
ity.
Although the relevance and necessity of the Court’s mandate are be-
yond dispute, its credibility, with respect to both its judicial achievements
and its institutional ethics, has been called into question. For the former,
this is due to its relatively modest impact, to date, concerning its prosecuto-
rial record within which the performance of the Office of the Prosecutor
(‘OTP’), as well as genuine complexities, demanding disclosure require-
ments and at times innovative jurisprudence have all played a part. 15
The ICC has also made an unsteady contribution to furthering the ju-
risprudence associated with international crimes with some notable excep-
tions, including the Judgement in the Prosecutor v. Bosco Ntaganda case, 16
and the earlier decisions in the same case by the Trial and Appeals Cham-
15
See, for example, Coalition of NGOs for the ICC, “Jean-Pierre Bemba Gombo acquitted by
ICC Appeals Chamber”, 13 June 2018; Women’s Initiatives for Gender Justice, “Appeals
withdrawn by Prosecution and Defence, Prosecutor v Germain Katanga”, 26 June 2014;
Women’s Initiatives for Gender Justice, “The Compendium: An Overview of Situations and
Cases Before the International Criminal Court”, 2017; Douglas Guilfoyle, “Part III - This is
Not Fine: The International Criminal Court in Trouble”, in European Journal of Interna-
tional Law, 25 March 2019; and Women’s Initiatives for Gender Justice, “Gender Report
Card on the International Criminal Court”, 2007–2014 and 2018.
16
ICC, Situation in the Democratic Republic of the Congo, Prosecutor v. Bosco Ntaganda
(‘Ntaganda’), Trial Chamber, Judgment, 8 July 2019, ICC-01/04-02/ 06-2359 (https://
www.legal-tools.org/doc/80578a/).

bers with respect to the charges of rape and sexual slavery committed
against children within Ntaganda’s own militia group. 17
For the latter credibility issue, its institutional integrity has been
called into question due to what appears to be improper, unethical or un-
lawful conduct by ICC staff, specifically senior leaders and Court officials.
Some of these incidents are in the public domain, several have been ex-
posed by the media. 18
Arguably, its institutional credibility has also been compromised,
perhaps most damagingly, by the more mundane but less widely known
repetitive breaches of ICC staff regulations, rules, policies and resolutions.
These violations, small and large, have been committed by those who have
both shaped and taken advantage of a culture of non-compliance and unac-
countability. This environment has been enabled and facilitated by the
manner in which the Assembly of States Parties (‘ASP’, or the ‘Assembly’)
has exercised its governance responsibilities.
Based on longitudinal monitoring of the Court, 19 there is now com-
pelling evidence to suggest that the ICC is in a precarious position with
17
Ntaganda, Trial Chamber, Second Decision on the Defence’s challenge to the jurisdiction of
the Court in respect of Counts 6 and 9, 4 January 2017, ICC-01/04-02/06-1707, para. 54
(https://www.legal-tools.org/doc/2de239/); Ntaganda, Appeals Chamber, Judgment on the
appeal of Mr Ntaganda against the “Second decision on the Defence’s challenge to the juris-
diction of the Court in respect of Counts 6 and 9”, 15 June 2017, ICC-01/04-02/06-1962
(https://www.legal-tools.org/doc/a3ec20).
18
Sven Becker, Marian Blasberg and Dietmar Pieper, “The Ocampo Affair: A Former ICC
Chief’s Dubious Links”, in Spiegel International, 5 October 2017; EIC Network, “Secrets of
the International Criminal Court Revealed”, in The Black Sea, 29 September 2017; EIC
Network, Stephanie Maupas, “Secrets of the International Criminal Court: The Kenya U-
Turn”, in The Black Sea, 6 October 2017; Barney Thompson, “Former ICC Prosecutor in
row over lucrative consultancy work”, in Financial Times, 6 October 2017; Stephanie Mau-
pas, “ICC Under Fire for Internal Mismanagement”, JusticeInfo.net, 26 February 2018; and
Morten Bergsmo, “Integrity as Safeguard Against the Vicissitudes of Common Justice Insti-
tutions”, Centre for International Law Research and Policy (‘CILRAP’), 1 December 2018,
at 8.53-11.44 mins (https://www.cilrap.org/cilrap-film/181201-bergsmo).
19
Between 2004 and 2017, the author was the Executive Director of the Women’s Initiatives
for Gender Justice. During this time, the organization monitored the institutional develop-
ment of the ICC regarding recruitment and the gender and geographical profile of the staff
of the Court, and its elected officials. It also conducted reviews of selected ICC policies and
training activities, analysed and advocated for the elaboration of the Court’s institutional
framework, including the development of the Independent Oversight Mechanism, and scru-
tinized the annual budget submissions of each of the organs of the ICC. The organization
provided briefings to States Parties, to the Committee on Budget and Finance (‘CBF’), and
the Assembly of States Parties (‘ASP’), specifically addressing issues associated with the in-

respect to its institutional integrity. This appears to be the result of a long,

slow, burn of ethical compromises, violations and questionable conduct
cumulating in a credibility crisis for the Court. Alarmingly, these violations,
both subtle and blatant, have occurred on a significant scale, over a long
period of time, largely without consequence or accountability. Breaches left
unchecked have inevitably contributed to an ever-increasing tolerance for
impropriety, and predictably, ever-more serious violations.
Given the ICC is a relatively new international mechanism, the vol-
ume and range of institutional challenges appear to be excessive for its
mere 17 years of operations. This is all the more discombobulating given
the sophistication of management practices employed in contemporary
public and private institutions; and that this is a Court created in and for a
new millennium when there is heightened public access to information and
consequently, greater scrutiny of institutions and public officials. 20
How did the ICC arrive at this point where its institutional integrity
has been compromised and is justifiably questioned?
8.4. Relationship between the ICC and the United Nations
8.4.1. Independence of the ICC
In creating the ICC, the governments participating in the Rome negotiation
process agreed upon a model obligating the Court to work in close associa-
tion with, but remain independent from, the UN, including the UN Security
Council.
Unlike the International Court of Justice, where all UN Member
States are automatically its members, the ICC is a court of choice. Mem-
bership to the ICC is by voluntary accession to the Rome Statute. States are
also able to accept the Court’s authority, without being a member, under an
Article 12(3) declaration. 21 At the time of writing, 123 States have ratified
stitutional development of the Court. The Women’s Initiatives for Gender Justice produced
annual Gender Reports Cards on the ICC (‘Gender Report Cards’) that summarized im-
portant developments in the ICC’s substantive work, as well as providing assessments and
detailed recommendations on aspects of its internal control system, governance issues, the
budget, staff profile, and the election of Court officials. The Gender Report Cards also as-
sessed the implementation of the gender mandates of the Rome Statute with respect to the
institutional development of the Court. Since 2018, the author has, on an independent basis,
continued to monitor a select number of institutional development issues before the ICC.
20
21
Rome Statute of the International Criminal Court, 17 July 1998, Article 12(3) (http://
www.legal-tools.org/doc/7b9af9/):

the Rome Statute and are members of the ICC. 22 This membership provides
a legal remedy for nationals of States Parties who are victims of crimes
within the ICC’s jurisdiction. It also subjects their citizens, including mili-
tary leaders and elected public officials, to potential prosecutions and the
judgments of the Court.
The ICC was created to be an independent institution driven by its
jurisdictional imperatives but operating in a clearly defined relationship
with the UN system. 23 The intention behind its unique status was to remove,
or perhaps more realistically reduce, the potential political influence of the
Security Council on this new global justice mechanism. The goal was to
establish a Court accessible to all States, beyond the power centres created
after the Second World War and subsequently instituted in the permanent
membership of five States on the Security Council, each with veto powers.
Whilst keenly aware that it would likely operate in highly politicized envi-
ronments, the Court was established on the basis that it would be driven by
the jurisdiction with which it was entrusted and in so doing act as an equal-
izer in the world of the powerful and powerless.
However, the notion that the Court is a politically neutral zone is an
ideal rather than a reality. All of the States Parties to the ICC are also all
UN members and therefore well versed in the economic relationships, con-
sensus-building activities, transactional co-operation and the geopolitical
and historic alliances that constitute international diplomacy. Two of the
five permanent members of the Security Council are States Parties of the
ICC – France and the United Kingdom. Although the three permanent
members of the Security Council that are not States Parties to the Court,
namely the United States of America (‘US’), Russia and China, do not have
If the acceptance of a State which is not a Party to this Statute is required under Para-
graph 2, that State may, by declaration lodged with the Registrar, accept the exercise of
jurisdiction by the Court with respect to the crime in question. The accepting State shall
cooperate with the Court without any delay or exception in accordance with Part 9.
22
States Parties to the Rome Statute (available on the ICC’s web site); ICC, “President of the
Assembly welcomes Malaysia’s accession to the Rome Statute”, 5 March 2019 (https://
www.legal-tools.org/doc/5f783c).
23
ICC, “Negotiated draft Relationship Agreement between the International Criminal Court
and the United Nations”, adopted at the third plenary of the Assembly of States Parties on 7
September 2004, entered into force on 4 October 2004, ICC-ASP/3/Res.1 (‘Relationship
Agreement’) (https://www.legal-tools.org/doc/9432c6). There, Member States reminded
themselves that “in accordance with the Rome Statute, the International Criminal Court is
established as an independent permanent institution in relationship with the United Nations
system”.

any formal influence with the ICC, it would be fanciful to assume that at
least some of their interests are not readily communicated to the Court via
surrogate States or through direct communication between their diplomats
and Court officials.
As a permanent and independent entity within the multi-lateral com-
munity associated with the UN, the ICC is an important and irreplaceable
component of the international peace and security architecture.
8.4.2. Relationship Agreement
With its independence in mind and highly cognizant of its interface with
the Security Council, the negotiators of the Rome Statute designated two
specific statutory roles for the Security Council with respect to the potential
opening of investigations into crimes falling within the ICC’s temporal and
subject matter jurisdiction. These are outlined in Articles 13 and 16 of the
Rome Statute, respectively, and address the ability of the Security Council,
acting under Chapter VII of the UN Charter to: refer a situation to the ICC
Prosecutor in which one or more crimes within the ICC’s jurisdiction ap-
pear to have been committed; 24 or alternatively, to defer an ICC investiga-
tion or prosecution for up to 12 months, with the possibility of renewing
such a deferral. 25
With the specific roles for the Security Council defined and the juris-
dictional independence of the Court enshrined within the Statute, the ICC
and the UN entered into a relationship agreement (the ‘Agreement’), as re-
quired under Article 2 of the Rome Statute. 26 Within two years of the Stat-
ute coming into force, an agreement specifying and clarifying the relation-
ship between the new Court and the UN was adopted by both parties. 27
The Agreement recognizes the ICC as an independent permanent ju-
dicial institution and, reciprocally, the ICC recognizes the responsibilities
of the UN under the UN Charter. 28 It also addresses a range of pragmatic
issues and provides procedures, outlined in Article 17 of the Agreement,
regarding the use of powers designated to the Security Council to refer sit-
uations and defer investigations or prosecutions. The Agreement also de-
24
ICC Statute, Article 13(b), see above note 2.
25
Ibid., Article 16.
26
Ibid., Article 2.
27
Relationship Agreement, see above note 23.
28

scribes the conditions under which the UN may provide documents or in-
formation to the Prosecutor on condition of confidentiality and solely for
the purpose of generating new evidence. 29
Overall, the Agreement defines the terms of “a mutually beneficial
relationship whereby the discharge of respective responsibilities of the
United Nations and the International Criminal Court may be facilitated”. 30
In practice, the Agreement has been readily and regularly utilized.
The UN has played important roles with the ICC in a number of ways and
has contributed to the Court’s work both in its prosecutorial activities as
well as operationally, including, but not limited to:
1. The voluntary participation of UN personnel as expert witnesses in
ICC cases;
2. Acting as a confidential source of information for the OTP from
which it could generate evidence during its investigations;
3. Providing assistance for the arrest of ICC indictees and their transfers
to the Court; and
4. The provision of logistic, operational and security support to ICC
missions and field offices.
In addition to the statutory independence of the ICC’s investigations
and cases, there is also an important institutional separation between the
Security Council and the Court, specifically in the area of governance. Un-
like, for instance, the International Criminal Tribunal for the former Yugo-
slavia (‘ICTY’) and the International Criminal Tribunal for Rwanda
(‘ICTR’), which reported solely to the Security Council, 31 the ICC unique-
ly reports only to its membership of States Parties (except the Prosecutor’s
report to the Security Council on the cases the latter referred) and elects its
own officials. In this respect, the UN does not have a governance role or
decision-making responsibilities regarding the institutional development
and oversight of the ICC.
29
Ibid., Article 18.
30
Ibid., Preamble.
31
With the closure of both the ICTR in 2015 and the ICTY in 2017, all remaining cases and
appeals associated with these courts are dealt with by the International Residual Mechanism
for Criminal Tribunals (the ‘Mechanism’). The President of the Mechanism reports on a six-
monthly basis to the UN Security Council, and annual reports on the work of the Mechanism
are submitted to the General Assembly and the Security Council.

It was hoped that this structure would further protect the Court’s in-
dependence and that a nimble court unencumbered by UN bureaucracy
could design systems to suit its specific requirements and operational needs.
In practice, this means that the ICC is not obligated to comply with the
UN’s ethics-related policies and frameworks; it is not subject to its internal
control system, nor the UN’s conduct and accountability requirements.
This independence could have propelled the Court to become the
preeminent global institution demonstrating institutional authenticity in
harmony with the nobility of its mandate. Instead, the ICC stumbled into an
institutional void in which its ethical practices and internal control systems
lag behind international standards.
8.5. Building the Institution
8.5.1. ICC Staff Regulations and Rules
Since its beginning, the ICC appears to have been more mission-driven
than values-oriented. During the early years of its establishment, the ICC
and the ASP passed a number of policies and resolutions to transform the
Rome Statute into a working, viable Court. However, the strong focus on
its jurisdictional mandate largely overpowered attention to the regulatory,
organizational and ethics-related considerations necessary in building an
institution.
The starting point of an organization’s integrity always lies in its
foundations and internal architecture.
In developing its Staff Regulations in 2003, 32 and Staff Rules in
33
2005, the ICC closely followed the relevant regulations and rules of the
UN at that time. 34 For ease, to hasten ‘construction’ of the Court and per-
haps to take advantage of the experience of staff who were serving in the
UN-related tribunals, the ICC adopted the same professional categories,
32
ICC, Staff Regulations for the International Criminal Court, adopted at the second session of
the Assembly of States Parties, 8-12 September 2003, ICC-ASP/2/10 (‘ICC Staff Regula-
tions’) (http://www.legal-tools.org/doc/3542d3/).
33
ICC, Staff Rules of the International Criminal Court, adopted by the Assembly of States
Parties on 3 December 2005, entered into force on 25 August 2005, ICC-ASP/4/3 (‘ICC
Staff Rules’) (https://www.legal-tools.org/doc/10f5c7/).
34
The UN Staff Regulations and Rules relevant to this chapter and utilized in the comparison
with the ICC are contained within the United Nations Regulations Governing the Status,
Basic Rights and Duties of Officials other than Secretariat Officials, and Experts on Mission,
1 January 2002, ST/SGB/2002/1 (‘UN Staff Rules’) (https://www.legal-tools.org/doc/
wv8h0w/).

staff salary specifications, and related allowances, as the UN and sought

and was granted admittance to the UN Joint Staff Pension Fund for ICC
staff, 35 as compelled by ICC Staff Regulations. 36
A comparative read of the ICC texts and the UN Staff Regulations
and Rules as they existed at the time of the Court’s development, reveal a
striking similarity in both the structure and content between the respective
documents. This is to be expected given the ICC chose to follow the UN
common system with respect to employee-related entitlements and condi-
tions.
Whilst most of the ICC’s provisions strongly reflect those of the
UN’s Staff Regulations and Rules, there are differences with respect to: a
greater emphasis placed on confidentiality by the ICC; a more explicit an-
nunciation of due process for staff regarding the disciplinary procedures;
and subtle but specific reductions in the ethical requirements, conduct, and
accountability by the ICC, compared to the provisions established by the
UN. In these latter areas, the ICC departed from the pre-existing UN texts
and established standards.
For example, the ICC’s Staff Rules adopted by the ASP in 2005, sub-
tly downgraded references to ‘misconduct’, as referenced in the UN Staff
Rules, to ‘unsatisfactory conduct’ within the ICC context. 37 References to
‘serious misconduct’ are included in both sets of rules, but the ICC reduced
one of the levels of improper behaviour from the usual standard of ‘mis-
conduct’ to the lesser standard of ‘unsatisfactory conduct.’
This diminished level of impropriety was advocated for and insisted
upon by the OTP, specifically the Prosecutor, 38 on the basis of the statutory
independence of the OTP and his authority over all areas associated with
the management of the Office and its staff. 39 The Prosecutor’s approach
appeared to either inadvertently or deliberately diminish the manner in
which improper behaviour would be viewed generally, by reducing the se-
riousness of specific conduct that would ordinarily be regarded as miscon-
duct, but at the ICC would only be considered unsatisfactory. This recali-
35
United Nations General Assembly, by its resolution 58/262 of 23 December 2003, effective
1 January 2004.
36
ICC Staff Regulations, Regulation 2.1 and 3.1-3.4, see above note 32.
37
ICC Staff Rules, Rule 110.1, p. 64, see above note 33.
38
Conversations with former OTP staff members on file with the author.
39

bration of conduct and by implication the consequences associated with it

should be considered in light of a pattern of similar positions advocated by
the Prosecutor and the OTP in the first ten years of its operations, 40 as well
as the specific issues reported by the media in 2017 with respect to the
Prosecutor’s professional conduct both during and after his time in office. 41
Also absent from the ICC Staff Rules and Regulations are provisions
relating to the conduct and accountability requirements of Court officials,
including elected leaders and heads of organs. Specifically omitted are the
requirements for Assistant Secretary-General staff and above to file finan-
cial disclosure statements, which at the ICC relate to the level of elected
officials. This provision, included within the UN Staff Rules and Regula-
tions, 42 was omitted from the equivalent ICC documents.
By comparison with the UN’s Staff Rules, the section on Discipli-
nary Measures within the ICC Staff Rules also differed from the compara-
ble UN regulatory requirement. The UN requirement states that:
Any staff member may be required to reimburse the United
Nations either partially or in full for any financial loss suf-
fered by the United Nations as a result of the staff member’s
negligence or of his or her having violated any regulation, rule
or administrative instruction. 43
The ICC Staff Rules state that:
Staff members may be required to reimburse or compensate
the Court, either partially or in full, for any financial loss suf-
fered by the Court as a result of gross negligence, malice,
fraud or failure to observe any obligation under the instru-
ments of the Court, such as the Staff Regulations and Rules,
the Financial Regulations and Rules, and administrative issu-
ances. 44
Some may reasonably argue that the ICC rule is more robust than the
UN equivalent because it explicitly identifies serious breaches such as
gross negligence, malice, and fraud, for which ICC staff could be held ac-
countable. The intention behind listing these specific forms of misconduct
may have been genuinely motivated. However, in practice, the ICC provi-
40
See Sections 8.5.4., 8.6.2.1., and 8.6.2.2. of this chapter.
41
See above note 18.
42
ICC Staff Regulations, Regulation, 1.2(n), see above note 32.
43
UN Staff Rules, Rule 112.3, see above note 34.
44
ICC Staff Rules, para. 101.3(d), see above note 33.

sion of gross negligence is a higher threshold to prove than ordinary negli-

gence. Similarly, malice and fraud are more difficult breaches to substanti-
ate than the straightforward provision and language adopted by the UN
with respect to a violation of any regulation, rule or administrative instruc-
tion. Most of the ICC standards in this regulatory provision require addi-
tional proof of deliberateness, intention, or deception for unfair gain, re-
garding the decisions taken by an ICC staff member, compared to the UN
rule applicable to standards of negligence or violations.
It is possible that by raising the threshold of conduct that would be
considered a breach of this regulation, the ICC may have inadvertently re-
duced the likelihood of accountability. The Court’s approach potentially
expands the scope of conduct that could negatively impact on the Court,
including reckless and wilful conduct and decision-making, not automati-
cally considered gross negligence, fraud or malice, for which there could
be no consequences for those responsible. To date, despite evidence sug-
gesting such violations may have occurred, no ICC staff member or elected
official has been held accountable for breaches outlined in this regulation,
even under the ordinary threshold of “failure to observe any obligation”. 45
Missing from the ICC Staff Regulations and Rules and the same UN
documents at the time, were provisions relating to the duty of staff to report
violations of the legal and policy frameworks; ensuring the protection from
retaliation for those who report breaches and the associated procedures in
place for this process; and a definition of conflict of interest. Both sets of
regulations and rules address conflicts of interest but limit this to financial
interests and are silent on the range of issues and influences that may give
rise to a potential conflict of interest in the commission of one’s duty.
8.5.2. International Civil Servants
The UN and ICC Staff Regulations and Rules both identify the status of
their respective staff as ‘international civil servants’. 46 This status has a
long history within the UN and has been a pivotal component of its institu-
tional identity. The Standards of Conduct for the International Civil Service
(the ‘Standards’), first produced in 1954 and subsequently updated in 2001
and 2013, were adopted early on in the tenure of the second Secretary-
45
See, for example, below Section 8.7. (“Case Study: ReVision”).
46
UN Staff Rules, Rule 101.1, see above note 34; ICC Staff Regulations, Regulation 1.1(a),
see above note 32.

General of the United Nations, Dag Hammarskjöld. Perhaps more than any
other Secretary-General, Dag Hammarskjöld actively promoted and em-
bodied the identity and practice of the international civil service and equat-
ed the concept of integrity with “conscience” and “respect for law and re-
spect for truth’’. 47
According to the Standards,
international civil servants have a special calling: to serve the
ideals of peace, of respect for fundamental rights, of economic
and social progress, and of international cooperation. It is
therefore incumbent on international civil servants to adhere
to the highest standards of conduct; for, ultimately, it is the in-
ternational civil service that will enable the United Nations
system to bring about a just and peaceful world. 48
The Standards of 2001, available to the ICC at the time of its estab-
lishment, had been recently updated by the UN in response to new ethical
challenges not fully addressed by the earlier Standards and in order to re-
flect a more modern era with the evolution of new concepts and global ad-
vances. 49
The Standards issued at that time addressed a number of practical is-
sues, including ethical aspects of the role and the working relationships of
civil servants; 50 the obligation to report the commission of violations; 51
personal conduct and protection of information; 52 loyalty to the organiza-
tion and its vision; 53 and the requirement to place the interests of the insti-
tution above their own and ensure responsible use its resources. 54
47
48
International Civil Service Commission, Standards of Conduct for the International Civil
Service, January 2002, para. 2, adopted by the United Nations General Assembly, A/RES/
56/244, December 2001, distributed 5 February 2002 (‘Standards of Conduct’) (https://www.
legal-tools.org/doc/y77yzh/).
49
Ibid.
50
Ibid., paras. 15–19, 31-33, 38-45.
51
Ibid., para. 19.
52
Ibid., paras. 35, 38–40.
53
Ibid., paras. 4 and 7.
54
Ibid., para. 4.

The Standards also included a specific reference to the conduct of

those in management and leadership positions emphasizing their enhanced
responsibility to be models of exemplary conduct. 55
The Standards repeatedly stressed the qualities of integrity, honesty
and impartiality; 56 and urged harmonization between the mission of the
international civil service and the conduct of international civil servants.
The Standards were understood to complement and to some extent
supplement the UN’s Staff Regulations and Rules. Thus, gaps as noted ear-
lier in the employee documents with respect to the duty to report breaches
and protection from reprisals, 57 and conflicts of interest beyond the limited
focus of financial interests were addressed within the Standards 58 The UN
at the time recognized that although, “[t]he standards of conduct do not
have the force of law” unlike the staff regulations and rules, importantly
they “provide a discussion of expected standards to help staff understand
their role as international civil servants”. 59
Similarly, the ICC also claims the bold and apt identity of interna-
tional civil servants for its staff as reflected in the ICC Staff Regulations
and Rules, 60 and even refers to the UN Standards within the ICC’s Code of
Conduct for Staff Members (the ‘Code of Conduct’). 61
However, unlike the UN, the ICC does not appear to consider the
Standards to be complementary to the Staff Regulations and Rules. As such,
the regulatory gaps in the ICC’s internal policy regime either remain un-
addressed or have been gradually and partially filled over time, but several
55
Ibid., para. 16: “It is natural for managers to be seen as role models and they have therefore
a special obligation to uphold the highest standards of conduct”.
56
Ibid., paras. 2, 4- 5, 8-9, 27, 30, and 48.
57
Ibid., para. 19.
58
Ibid., paras. 21, 22, and 41.
59
United Nations, Status, Basic Rights and Duties of UN Staff Members, 1 November 2002,
ST/SGB/2002/13, Section I, para. 7, p. 5 (https://www.legal-tools.org/doc/f9e724/).
60
ICC Staff Regulations, see above note 32 and ICC Staff Rules, see above note 33. The term
‘international civil servant’ appears eleven times in the ICC Staff Regulations and Rules, in-
cluding in their pre-eminent provisions where both declare that “ICC staff are international
civil servants”, see ICC Staff Regulations, 30 September 2016, Ref. ICC/PRESD/G/
2016/002, Regulation 1.1(a) (https://www.legal-tools.org/doc/bc0ddb) and ICC, Staff Rules
of the International Criminal Court, 2015, Rule 101.1 (https://www.legal-tools.org/doc/
b14f3a).
61
ICC, Code of Conduct for Staff Members, 4 April 2011, ICC/AI/2011/002, Introduction and
Section 1 (https://www.legal-tools.org/doc/75f9db).

years after the ICC began its judicial work and field operations. For exam-
ple, a broad range of conflicts of interest were eventually included in the
Court’s 2011 Code of Conduct. 62 A financial disclosure programme was
introduced at the Court in 2016 applicable to principals and staff involved
with specific finance and procurement activities, as well as staff associated
with the system of internal control and oversight. 63 The ICC’s Whistle-
blower Policy, adopted in 2014, addresses the duty to report violations and
provides protection from retaliation. 64 The creation of the Independent
Oversight Mechanism (‘IOM’), deemed fully functional in 2017, finally
addresses misconduct, encompassing both unsatisfactory and serious mis-
conduct. 65 Unfortunately, this staggered and piecemeal approach to the
ICC’s institutional development created an internal environment without
sufficient guidance and regulatory clarity, and delayed the conscious evolu-
tion of an ethics-based culture.
Despite references to its staff as international civil servants, the Court
does not appear to have fully accepted the responsibilities of this status
within its organizational culture or policy and legal frameworks. At the
same time, States Parties have not exercised oversight of the Court through
62
Ibid., Section 4, paras. 4.1-4.5.
63
ICC, Disclosure Requirements - Financial Disclosure Programme of the Court (ICC-FDP)
and IPSAS Related Party Disclosures, 6 October, 2015, ICC/AI/2015/05 (https://www.legal-
tools.org/doc/bbdb4c/). See also ICC, Report of the Court on Policy Issues (Anti-fraud,
Whistle-blower Policies, Financial Disclosure Programme, Longer-term Investment Options
and Employee Benefit Liabilities), 4 May 2015, ICC-ASP/14/17 (https://www.legal-
tools.org/doc/lpfxdi/). In para. 8:
The Court has identified the following classification of personnel required to file: (a)
The Prosecutor, Deputy Prosecutor, Registrar and Deputy Registrar; (b) All staff mem-
bers and officials at D-1 level or above; (c) All Certifying Officers; (d) All Procurement
staff members, or those whose principal occupational duties are the procurement of
goods and services for the Court; (e) All staff members whose principal occupational du-
ties are related to the investment of the assets of the Court; (f) Other staff members and
officials whose direct access to confidential procurement or investment information war-
rants the filing of disclosure statements; and (g) All staff members serving in the Inde-
pendent Oversight Mechanism and the Internal Audit Office.
64
ICC, Whistleblowing and Whistleblower Protection Policy, 8 October 2014, ICC/PRESD/
G/2014/003, Article 1.1–1.3 (https://www.legal-tools.org/doc/0c36ff).
65
The Independent Oversight Mechanism (IOM) was established by the Assembly at its eighth
session in accordance with Article 112, para. 4, of the ‘ICC Statute’. The IOM became fully
operational in 2017. It is an operationally independent office with the head of the IOM re-
porting to the President of the Assembly of States Parties. See also ICC, Establishment of an
Independent Oversight Mechanism, 26 November 2009, ICC-ASP/8/Res.1 (‘ICC-
ASP/8/Res.1’) (https://www.legal-tools.org/doc/bf0e8c/).

the prism of the Standards, and the prestige of being an international civil
servant has perhaps been under-utilized by the ICC as a source of motiva-
tion for its employees. Nevertheless, the Court’s assertion of this status for
its staff carries with it the responsibility to adhere to the standards of ethi-
cal conduct expected of those in the international civil service.
Not relying on the Standards alone to fill some of the policy gaps, the
UN has continuously amended and updated its staff regulations and rules as
well as other workplace and ethics-related policies. By contrast, the ICC
has not.
Since the UN Regulations were first published in 1952, there have
been more than 60 amendments to the staff-related legal framework. 66 This
reflects an ongoing process of review, adaption, and possibly learning by
the UN, often preceded by crisis and scandals, as well as the adoption of
management practices normative in many parts of the world. For compari-
son with the ICC, in the first 17 years of UN operations (1952-1969), it
amended its staff regulations and rules on 17 occasions. 67 During the insti-
tutional lifespan of the Court, since the adoption of its Rules to the time of
writing (2003-2020), the UN has revised its Staff Regulations and Rules
more than 20 times. According to the ICC web site, in the same 17-year
period, it appears that the ICC has amended its Staff Regulations twice, 68
and its Staff Rules appear to have been amended three times. 69
Evidently, the ICC has not demonstrated the same attention and nec-
essary commitment to the ongoing evolution of its institutional framework.
Whereas one might have expected the ICC, as a modern and unprecedented
institution, to have adopted the highest standards possible in its founding
institutional documents, it opted instead for diminished versions of some
66
United Nations, “Staff Regulations and Rules of the United Nations”, 1 January 2018,
ST/SGB/2018/1 (https://www.legal-tools.org/doc/6d5d9j/).
67
Ibid., p. 7.
68
ICC, Amendment to the ICC Staff Regulations, 22 January 2014, ICC/PRESD/G/2014/001
(https://www.legal-tools.org/doc/d562a8/); ICC Staff Regulations, ICC-PRESD/G/2016/002,
30 September 2016 (https://www.legal-tools.org/doc/bc0ddb/).
69
ICC, Promulgation of the Amendments to the ICC Staff Rules, ICC/AI/2015/004, 24 July
2015 and related corrigendum, ICC Promulgation of the Staff Rules of the International
Criminal Court, 27 July 2015, ICC/AI/2015/004/Cor.1 (https://www.legal-tools.org/doc/
2a5274/); Promulgation of the Amended Provisional Staff Rules of the International Crimi-
nal Court, ICC/AI/2016/003, 30 December 2016 (https://www.legal-tools.org/doc/65ab39/);
Promulgation of the Amended Provisional Staff Rules of the International Criminal Court, 3
May 2017, ICC/AI/2016/003 Rev.1 (https://www.legal-tools.org/doc/f5e9c7/).

key international standards, specifically in the areas of conduct and ac-

countability. Over time, these subtle but consistent reductions had a numb-
ing effect on the Court and weakened the ethical orientation of the ICC as
an employer and as a public institution. In hindsight, these were tell-tale
signs of what lay ahead.
8.5.3. Prohibited Behaviour: Sexual and Other Forms of
Harassment
A specific area of weakness in the ICC regulatory framework is a compre-
hensive and robust articulation of prohibited behaviour inclusive of sexual
and other forms of gender-based violence committed within the workplace
as well as by ICC staff, or others acting on behalf of the Court, in the
course of their work and official duties.
In 2005, the ICC issued an Administrative Instruction on Sexual and
Other Forms of Harassment (the ‘Sexual Harassment Administrative In-
struction’ or the ‘Policy’). 70 At the time of its issuance, the Policy was not
considered to reflect best practice standards with several areas of substan-
tive and procedural weakness. 71 Specific and ongoing concerns include the
general orientation of the Policy regarding its emphasis on courtesy, dignity
and congeniality in the introductory paragraphs. 72 This language is sugges-
tive of an era when harassment was trivialized and considered impolite or
overly friendly. Whilst qualities such as courtesy and congeniality, as sug-
gested by the Court, are valid as components of an overall workplace cul-
ture, they are perhaps less pertinent in the context of a sexual harassment
policy compared with concepts such as equality, respect and workplace
safety.
70
ICC, Sexual and Other Forms of Harassment, Administrative Instruction, 14 July 2005,
ICC/AI/2005/005 (‘Sexual Harassment Administrative Instruction’) (https://www.legal-
tools.org/doc/hyvqzp/).
71
Specifically, the ICC Policy does not sufficiently address the following issues: the identifica-
tion of focal points with expertise in this area; the intended dissemination of the Policy and
support for staff; the lack of preventive measures; the importance of prompt and concrete re-
sponses by managers to complaints under this Policy, with failure to do so possibly consid-
ered a breach of duty and/or a performance-related issue for the manager/supervisor; an ex-
pansive list of options available for reporting incidents; monitoring implementation and use
of the Policy; and the absence of any references to or definition of discrimination, one of the
potential precursors to the commission of conduct which is either intended to harass or could
be experienced as harassment.
72
Sexual Harassment Administrative Instruction, paras. 1.1 and 1.2, see above note 70.

Additional provisions indicating that proven cases of harassment may

result in disciplinary measures, suggest that proven cases may also result in
no disciplinary action being taken. 73
This is further exacerbated by provisions that could be seen to disin-
centivize staff from reporting incidents. For example, paragraph 3.7 of the
Policy indicates that individuals have a responsibility to communicate
clearly to their colleagues about behaviour they find offensive and when
doing so, they must also listen and respond to comments about their own
behaviour. In the context of a sexual harassment policy, such a provision
contains a subtle but clear suggestion that the alleged harassment or offen-
sive conduct may be considered to have been provoked by the behaviour of
the persons harassed, further implying that they could be blamed or held
mutually responsible for the harassing behaviour they experienced. The
apparent victim-blaming orientation of this provision and the weakness of
the Policy in general, are in contrast with the explicit and unambiguous
gender-responsive provisions contained within the Rome Statute. Unfortu-
nately, the current Policy does not appear to effectively locate sexual har-
assment on the continuum of gender-based crimes embedded in the Statute,
all of which are premised, amongst other factors, upon the recognition and
experience of inequality. This contrast exposes a perhaps revealing discon-
nect between the Rome Statute and the high intentions of the drafters inte-
grating gender issues, and the institutional foundations and the mindset of
the implementers enacting a policy on sexual and other harassment.
With reference to the development of the OTP generally, Morten
Bergsmo has described a similar quandary between the careful negotiations
determining the ICC’s legal infrastructure and the reality of its implementa-
tion as “a fundamental contrast between the making of the law and the
making of an institution”. 74
The importance of aligning an institution with its mandate has also
been underscored by Justice Richard Goldstone, specifically regarding
gender-related issues. As the first Prosecutor of the ICTY and the ICTR,
one of the immediate actions undertaken by his office was to consider how
it would respond to gender-based crimes, given the limitations in the Tri-
73
Ibid., para. 7.4.
74
Morten Bergsmo, “Institutional History, Behaviour and Development”, in Morten Bergsmo,
Klaus Rackwitz and SONG Tianying (eds.), Historical Origins of International Criminal
Law: Volume 5, Torkel Opsahl Academic EPublisher, 2017, p. 25 (https://www.toaep.org/ps-
pdf/24-bergsmo-rackwitz-song).

bunals’ Statutes and the Geneva Conventions in this area. 75 Justice Gold-
stone’s view was that they would need to be inventive to address the lacuna
that existed around these specific crimes in the early 1990s. 76 Mindful of
his jurisdictional responsibilities and understanding the importance of or-
ganizational coherence between its prosecutorial approach and the culture
within the OTP itself, Justice Goldstone urged staff to be attentive to gen-
der issues in all spheres, believing that, “if we don’t get gender issues right
in the office, we’re not going to get it right out of the office”. 77
Unlike the UN’s comparable sexual harassment and discrimination
policies (in place at the time the ICC was drafting its Sexual Harassment
Administrative Instruction), 78 the Court’s policy differs in three key aspects:
1. The ICC’s policy does not include an explicit reference to sexual
harassment being particularly serious when behaviour of this kind is
engaged in by Court officials. Paragraph 2.2 of the ICC’s policy
closely reflects paragraph 2 of the relevant UN Administrative In-
struction, with the specific exception of the language expressing that
harassment is “particularly serious when behaviour of this kind is
engaged in by any official”. This phrase was omitted from the ICC’s
policy.
2. It does not acknowledge the barriers to reporting harassment created
by power differentials between the harassed person and the alleged
harasser. Recognizing and explicitly naming the issue of power em-
bedded in the acts of harassment and concomitantly inherent within
the challenges to report such violations, is an appropriate lens
through which to develop effective policies and practices in this area.
The power imbalance is magnified if the person allegedly responsible
for the harassment is more senior to the harassed person, which is of-
ten the reality. Reporting is exponentially more difficult if the alleged
harasser is the head of an organ or elected official of the Court or the
ASP or affiliated with one of these officials.
75
Richard J. Goldstone, “Prosecutorial Language, Integrity and Independence”, CILRAP, 2
December 2018, at 6.50-7.25 minutes (www.cilrap.org/cilrap-film/181202-goldstone/)
76
Ibid.
77
Ibid., at 8.50-9.12 minutes.
78
United Nations, Administrative Instruction, 29 October 1992, ST/AI/379 (https://www.legal-
tools.org/doc/juboyq/).

3.Paragraph 6.1 of the ICC policy states that staff members “shall have
reasonable grounds before making a complaint of harassment”, and
paragraph 7.6 indicates that if such a complaint is found to be base-
less or malicious, “the complainant may be subject to disciplinary
procedures”. These provisions, not within the UN’s Administrative
Instruction, could be considered intimidating for those contemplating
reporting harassment and may be indicative of an environment hos-
tile to, and inclined towards disbelief of, those reporting such con-
duct.
These policy gaps were subsequently reflected in the systemic indif-
ference demonstrated by the Court’s leadership regarding the lack of mean-
ingful implementation of the Policy and monitoring of its use and accessi-
bility. This inaction prevailed despite information that began to surface as
early as 2005 with respect to the alleged conduct of staff and some Court
officials in relation to possible harassment, especially of female staff and
interns. 79
In 2018, the ICC Disciplinary Advisory Board 80 determined that the
Sexual Harassment Administrative Instruction did not apply to support staff
members of either Defence Counsel or Victims Representatives, leaving
these ICC-related contractors without redress or policy protection. 81 Sup-
port staff are particularly vulnerable because their contracts are negotiated
directly with the Defence Counsel or Victims Legal Representatives who
are not obliged to ensure that these employment arrangements comply with
the standards or conditions within contracts issued directly by the ICC. The
Court does not require any minimum employment protections and stand-
ards within such contracts, thus leaving support staff at the whims of the
Counsel/Legal Representatives with little bargaining power and no contrac-
79
Conversations with former Court staff on file with the author.
80
ICC, “Disciplinary Procedure” (available on the ICC’s web site).
81
ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques
Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, Trial Chamber, Request to
Review the Registry’s Decision to Neither Apply or Comply With Legal Service Agreements
with Defence Support Staff, 20 June 2018, ICC-01/05-01/13-2292, paras. 21–23 (‘Jean-
Pierre Bemba Gombo case’) (https://www.legal-tools.org/doc/dd9acd); ICC, Jean-Pierre
Bemba Gombo case, Registry's Observations on the “Request to Review the Registry's De-
cision to Neither Apply or Comply With Legal Service Agreements with Defence Support
Staff”, Trial Chamber, 20 June 2018, ICC-01/05-01/13-2292, paras. 21–27 (https://
www.legal-tools.org/doc/d48f7e).

tual rights to sick leave, paid leave, and other standard conditions. 82 Alt-
hough they are acting on behalf of the ICC, the Court does not extend any
services to the Defence/Victims support staff and, as such, they may be un-
able to access the Court’s medical practitioners, staff welfare services or
the focal points indicated within the Policy to whom incidents of harass-
ment can be reported. These conditions magnify the vulnerability of sup-
port staff, predominantly female, in relation to their direct service on behalf
of the Court.
In 2018, 46 defence and victim’s support staff members raised spe-
cific concerns with the Registry regarding the lack of institutional protec-
tion against harassment and exploitation in the workplace. 83 In March 2018,
the International Criminal Court Bar Association issued a declaration re-
minding Defence Counsel of their obligations under the Code of Conduct
for Counsel. 84 Despite the Registry’s awareness of the policy gaps, the spe-
cific issues raised by support staff, and the associated vulnerability of these
actors, it has not initiated any remedies or interim arrangements establish-
ing minimum employment standards for these positions. In 2019, the Reg-
istry finally undertook a review of the Policy. However, as noted in the Fi-
nal Report of the Independent Expert Review on the International Criminal
Court and the Rome Statute System (the ‘Independent Expert Review’), the
new Administrative Instruction updating this policy area has been “stuck at
inter-organ consultations for too long and remains unissued”. 85
This is an alarming oversight in the era of the #MeToo movement
and unfathomably reckless with respect to the protection and well-being of
individuals as well as the institution.
It is perhaps all the more startling in light of advocacy by civil socie-
ty representatives between 2005 and 2014 noting the gaps in the training
and procedures associated with the Policy, and the lack of progress in creat-
82
Ibid., paras. 3, 4, 10, 17, 18a-c.
83
Ibid., para. 21.
84
International Criminal Court Bar Association, ICCBA Declaration on Obligations under the
Code of Conduct for Counsel and Proposed Amendments thereto, 2 March 2018 (https://
www.legal-tools.org/doc/tie947/).
85
ICC, Independent Expert Review of the International Criminal Court and Rome Statute Sys-
tem, Final Report, 30 September 2020, para. 214, p. 68 (‘Independent Expert Review’)
(https://www.legal-tools.org/doc/cv19d5/).

ing focal points. 86 Since 2008, these representatives have called on the ICC
Presidency to oversee an audit of the Policy and its implementation, includ-
ing: a review of the issues covered by the Policy; the adequacy of training;
the creation of focal points; and the inclusion of the Policy within the in-
duction process for new staff. 87 The civil society organization further sug-
gested that the results of the audit should be shared with the Bureau and the
ASP and called on the Court to develop recommendations to address any
incidents or patterns of harassment and to ensure that the ICC provided a
“non-discriminatory, equality-based, human-rights respecting work envi-
ronment”. 88
8.5.4. Office of the Prosecutor
Beyond individual gaps in the institutional platform, deficiencies across
multiple areas of employment suggest a systemic indifference within the
Court to developing robust, ethical standards and an aversion, perhaps in-
tentional, to complying with its regulatory framework, exercising oversight
and responding to deviations from these obligations.
During the Court’s first decade, this antipathy was perhaps most ex-
emplified by the Prosecutor and the positions assumed by his Office on key
policy issues including with respect to the creation and implementation of
internal control systems across the Court as well as within the OTP.
In hindsight, possibly one of the first signs of this penchant for non-
compliance within the OTP was the decision by the Prosecutor against
adopting the draft Code of Conduct (the ‘draft Code’ or simply the ‘Code’),
included within the OTP’s draft Regulations prepared by members of the
Advance Team. 89 This preparatory team was established by States Parties
86
Women’s Initiatives for Gender Justice, Gender Report Card on the International Criminal
Court 2005, Policy Section; Gender Report Card on the International Criminal Court 2006,
p. 9; and Gender Report Card on the International Criminal Court 2007, p.14.
87
Court 2008, para. 19, p. 107; Gender Report Card on the International Criminal Court 2009,
p. 161; Gender Report Card on the International Criminal Court 2010, p. 65; Gender Re-
port Card on the International Criminal Court 2011, p. 85; Gender Report Card on the In-
ternational Criminal Court 2012, p. 60; Gender Report Card on the International Criminal
Court 2013, pp. 243, 254; Gender Report Card on the International Criminal Court 2014,
p. 277.
88
Ibid.
89
Salim A. Nakhjavani, “The Origins and Development of the Code of Conduct”, in Bergsmo,
Rackwitz and SONG (eds.), 2017, pp. 951–952, see above note 74.

to assist in setting up the OTP and the ICC as a whole in advance of Court
officials assuming office. 90 According to Salim Nakhjavani in his analysis
of the origins and development of the draft Code, the decision by the Ad-
vance Team to include a Code of Conduct within the draft Regulations of
the OTP and therefore at the outset of the work of the Office, was an effort
to “establish a universalised, virtues-based framework to guide behaviour
and to contribute to establishing a genuinely international, professional le-
gal culture within a nascent Office”. 91 Amongst other features, the original
draft of the Code included the provision for an in-house adviser for stand-
ards of conduct. 92 Far from envisaged as a set of rules, the draft Code of
Conduct was intended to “unify the vision and harmonise the activities” 93
of a diverse body of staff members and ultimately to cultivate “coherence
between the being of prosecutors and the doing of prosecutions”. 94 Regret-
tably, although the Regulations were adopted by the first Prosecutor in Sep-
tember 2003, the OTP Code of Conduct was ignored for a decade until it
was promulgated by Prosecutor Bensouda in 2013 within her first 18
months in office, 95 although without the position of an in-house adviser. 96
Had it been adopted in a timely manner, the foresight of integrating a
Code of Conduct within the Regulations and at the outset of the OTP’s
work may have gone some way towards inoculating the Office from the
series of ethical issues that have confronted the OTP over the past 17 years,
or perhaps at least provided a framework for corrective action. 97 As noted
by Nakhjavani, with respect to the OTP, “effective, binding ethical and pro-
fessional standards of conduct would have been indispensable from an ear-
ly stage”. 98
90
91
Nakhjavani, 2017, p. 962, see above note 89.
92
Ibid., p. 957.
93
Ibid., p. 955.
94
Ibid., p. 954.
95
Ibid., p. 952.
96
Ibid., p. 958.
97
See, for example, ibid., p. 952, fns. 5 and 6; Morten Bergsmo, Wolfgang Kaleck, Sam Mul-
ler and William H. Wiley, “A Prosecutor Falls: Time of the Court to Rise”, FICHL Policy
Brief Series No. 86 (2017), Torkel Opsahl Academic EPublisher, Brussels, 2017 (https://
www.toaep.org/pbs-pdf/86-four-directors/); Women’s Initiatives for Gender Justice, Gender
Report Cards on the International Criminal 2005-2014, 2018; Women’s Initiatives for Gen-
der Justice, “A critical time for the ICC’s credibility”, 2 October 2017.
98

In its absence, there appeared to be a consistent tendency in the lead-

ership of the OTP towards ignoring institutional and individual accounta-
bility. This was primarily justified by the Prosecutor’s assertion of the
OTP’s prosecutorial independence, as provided for in Article 42(1) of the
Rome Statute, 99 as well as Article 42(2) of the Statute which states: “The
Prosecutor shall have full authority over the management and administra-
tion of the Office, including the staff, facilities, and other resources there-
of”.
The Prosecutor’s authority over the Office is indisputable. However,
these statutory provisions were not intended to imply that OTP staff and
officials, including the Prosecutor, operated outside of the ICC’s rules, reg-
ulations, policies, and the requirements of the Rome Statute. During the
first decade of the Court, it sometimes appeared as if the Prosecutor be-
lieved that OTP staff members were accountable to the standards set within
the Office rather than to those established by the institution. This is not in-
tended as a commentary on the integrity of the staff members of the OTP
who should be assumed to be serious professionals largely mindful of their
ethical responsibilities, duties, and regulatory obligations. It is simply a
reflection that the ethical tone is always set from the top and that the “high
officials of international courts define the culture of integrity within their
institutions”. 100
It appears that at no time during the Prosecutor’s tenure was the stat-
utory imperative of independence sufficiently balanced with the equally
important principles of accountability and compliance, as well as individu-
al and institutional integrity. As exposed in the media revelations in 2017
regarding the former Prosecutor and his interactions with staff within the
OTP at that time, this underlying culture appears to have had a lasting ef-
fect on at least some members of the Office. Reflecting on the workplace
culture within the Court, the Independent Expert Review observed a gen-
eral sense of stagnation within the overall ICC workforce that they found
was “not being sufficiently rejuvenated through a process of staff turnover
(particularly at the senior management level)”. 101 This was particularly
concerning, in their view, given that “senior management staff have sub-
99
100
101
Independent Expert Review, 2020, para. 202, see above note 85.

stantial influence on maintaining organisational culture, thus making

change more difficult”. 102
The Prosecutor’s apparent aversion to checks and balances also di-
rectly contributed to weakening the internal oversight system within the
Court as a whole, both during his tenure and beyond. Specifically, this con-
tributed to: delaying the establishment of the IOM and constraining the
conditions under which it operates (see Section 8.6.2.2.); curbing, along
with other Heads of Organs, the independence of the Office of Internal Au-
dit (‘OIA’) in its work and the submission of its findings (see Section
8.6.2.1.); and diminishing the oversight of the States Parties Committee on
Budget and Finance (‘CBF’) and the External Auditor by ignoring their
recommendations and concerns. 103
Perhaps it is unfair to single out the ICC Prosecutor after all, as sug-
gested by at least one commentator, the tendency towards unaccountability
and “a sense that misconduct is beyond them” is not uncommon within ju-
dicial institutions or amongst international prosecutors. 104 However, if true,
it is difficult to readily identify a peer who has matched this tendency to the
same degree as the first chief Prosecutor of the ICC.
The underlying approach of downplaying and minimizing wrong-
doing and subverting accountability during this period of the Court’s estab-
lishment, laid the groundwork for the development of a high level of toler-
ance for impropriety and for underestimating the impact of wrong-doing on
the reputation and culture of the institution. As a result, it provided fertile
ground for invincibility to grow, especially amongst Court officials, ulti-
mately compromising the integrity of the ICC. Regrettably, it also devoured
the space for genuine dialogue amongst ICC staff members regarding the
ethical challenges they encountered within the context of their work.
8.5.5. An Enabling Political Environment
The ICC’s eagerness to exercise its jurisdiction whilst still in its infancy as
an institution was widely supported, but may also have been its initial un-
doing. Significant expectations on the Court and assumptions about how its
legitimacy would be secured, defined the pace of its work and the issues to
102
Ibid., para. 203.
103
See, for example, ICC, Report of the Committee on Budget and Finance, 13 August 2004,
ICC-ASP/3/18, paras. 60–62 (‘ICC-ASP/3/18’) (https://www.legal-tools.org/doc/63ilat/).
104
Frédéric Mégret, “Accountability and Ethics”, in Luc Reydams, Jan Wouters and Cedric
Ryngaert (eds.), International Prosecutors, Oxford University Press, 2012, p. 417.

which it was attentive. There was an almost universal belief within the ICC,
amongst States Parties and other stakeholders, that the ICC’s legitimacy
would be achieved through the exercise of its jurisdiction alone, and not
also through its institutional integrity as a global publicly accountable insti-
tution. Its jurisdictional firepower was potentially formidable and perhaps a
little intoxicating, and the establishment of the Court was justifiably a
source of pride, excitement and anticipation.
Staff and external supporters wanted to close the ‘impunity gap’ 105
for the commission of international crimes as quickly as possible and ex-
pand the rule of law. Many were motivated by concern for the harm experi-
enced by victims of these crimes and the urgency to halt the ongoing com-
mission of mass violence. Some wanted to see how this new institution
would interface with the global peace and security agenda, its potential to
advance human rights more broadly and its effect, if any, on the pursuit of
accountability within the existing world order. A wide array of legitimate
and genuine motivations fuelled the significant expectations on the Court
when it was first established and may have added to the pressure to pro-
duce unrealistic results.
As early as August 2004, the CBF declared that the ICC was now
moving from the “start-up phase”, which they described as “designing sys-
tems and recruiting personnel”, into “an operational phase”. 106 The follow-
ing year, the staff strategy unit within the OTP was abolished because “the
initial stage of creating staff policies and guidelines was nearing its end”. 107
These decisions appeared to be somewhat premature given both the OTP
and the Court as a whole were in the throes of a voluminous hiring process.
For example, between March 2004 and August 2006, the number of ICC
staff members grew from 177 to 441 positions with a total of 624 posts ap-
proved for recruitment by the end of the 2006 financial year. 108 With insuf-
105
A term coined by Morten Bergsmo in 2002 which has become widely used in the interna-
tional justice field. Bergsmo, 2017, pp. 14–15, see above note 74.
106
ICC-ASP/3/18, para. 34, see above note 103.
107
ICC, Report of the Committee on Budget and Finance on the work of its fifth session, 21
October 2005, ICC-ASP/4/27, para. 37 (‘ICC-ASP/4/27’) (https://www.legal-tools.org/doc/
gz9soy/).
108
ICC, Reports of the Committee on Budget and Finance, 19 August 2004, ICC-ASP/3/22,
para. 20 (https://www.legal-tools.org/doc/l66zci/); ICC-ASP/4/3, 15 April 2005, para. 45;
ICC, Report of the Committee on Budget and Finance on the work of its seventh session, 1
November 2006, ICC-ASP/5/23, para. 39 (‘ICC-ASP/5/23’) (https://www.legal-tools.org/
doc/l66zci/). These figures are based on staff employed by the ICC on fixed term contracts

ficient staff policies, training and workplace procedures in place and with
little time to establish the internal environment, operating methods, and
ethical culture, the ICC was propelled towards exercising its mandate.
A reconstruction of the timeline demonstrates how quickly the ICC’s
jurisdiction was activated. The Rome Statute came into force on 1 July
2002. The first set of judges to the ICC was elected in February 2003 and
quickly sworn in at the seat of the Court, in The Hague on 11 March of the
same year. A short time later, the Prosecutor was sworn in on 16 June 2003,
and the Registrar was appointed and sworn in by the judges on 3 July 2003.
Within six months of these appointments, the ICC received its first refer-
ral, 109 and by March 2005, the OTP had received four referrals from States
and non-States Parties within a 14-month period. 110
The Court faced mounting and unrealistic expectations, many of
which the OTP itself fostered and encouraged, including through its budget
projections to the CBF. At times, these submissions appeared to greatly ex-
aggerate the speed of its investigations, its readiness for trials and its pre-
diction about the length of the legal proceedings. 111 Inaccurate early projec-
tions would not ordinarily be worthy of attention. An error in assessment
does not demonstrate unreliability and mistakes are inevitable in undertak-
ings as audacious as the mandate of the ICC. But bold pronouncements by
the Prosecutor throughout the first decade often over-estimated the prepar-
edness of the OTP. They also seemed to be regularly at odds with effective
prosecutorial strategy and good management, as suggested by the results of
the cases launched during this period. In hindsight, these projections also
suggest four noteworthy aspects associated with the Prosecutor’s assertions.
First, there was a ready audience amongst stakeholders for ambitious
pronouncements by the Prosecutor, and in this area, he would not disap-
and exclude those hired on general temporary assistance, consultants, as well as interns and
visiting fellows.
109
ICC, The Prosecutor v. Dominic Ongwen, Case information Sheet, 16 December 2003, ICC-
PIDS-CIS-UGA-02-018/20 (https://www.legal-tools.org/doc/sn4msm/).
110
Referral by the Government of Uganda, 16 December 2003; referral by the Democratic Re-
public of the Congo, 3 March 2004; referral by the Government of the Central African Re-
public, 21 December 2004; referral by the United Nations Security Council of the situation
in Darfur, Sudan, 31 March 2005, UNSC Resolution 1593.
111
ICC-ASP/3/18, para. 35, see above note 103. “Situation 1, with a single case, would be
ready for trial in January 2005 and would last eight months. Investigations for two cases in
situation 2 would continue until May 2005, at which time they would be ready for trial. Tri-
als in situation 2 would continue for the rest of 2005”.

point. Although there is evidence that some people urged caution and en-
couraged the Prosecutor to take the time to build the institution, 112 the
Prosecutor, himself, believed that “the institution would be built through
activity, by doing cases and demonstrating that the Court could func-
tion”. 113 He felt he needed to show results as quickly as possible, 114 and
this was fuelled by the genuine intentions of supporters of the Court and
the indisputable needs of victims of mass crimes.
Second, the impulse to make extravagant statements appeared to sig-
nal a pattern of bravado that came to be associated with the Prosecutor and
many of the decisions of his office, some of which are considered to have
compromised the reputation of the Court with respect to the OTP’s prose-
cutorial performance. 115
Third, the decision-making by the Prosecutor and the Executive
Committee set an investigative and prosecutorial pace that the OTP (and
the Court) was ill-prepared for substantively, as well as in relation to its
staff levels and working methods. This extended to and impacted the or-
ganizational development of the Office.
Finally, in responding to these assertions, States Parties demonstrated
an appetite for public aggrandizement and an inclination to forego critical
evaluation. Concurrently, States also displayed a willingness to overlook
the Prosecutor’s professional conduct as an international civil servant, ei-
ther because they were not personally disturbed by it or because any indi-
vidual failings paled in comparison to the importance of the Court. 116
112
Alex Whiting, “Investigations and Institutional Imperatives at the International Criminal
Court”, in Martha Minow, C. Cora True-Frost and Alex Whiting (eds.), The First Global
Prosecutor: Promise and Constraints, University of Michigan Press, Ann Arbor, 2015,
p. 103. “Six months after my beginning I received a referral from Uganda. And some people
were advising me, be careful, you have to build an institution for the next two centuries. I
knew I had to run. I had to show very quickly, some outcome, some results”.
113
Ibid.
114
Ibid.
115
See, for example, Bergsmo, Kaleck, Muller and Wiley, 2017, see above note 97; Bergsmo,
2017, pp. 21–31, see above note 74; Scott Horton, “Unimaginable Atrocities: Six Questions
for William Schabas”, in Harpers Blog, 18 May 2012; Brigid Inder, “Launch of the Gender
Report Card for 2010”, Women’s Initiatives for Gender Justice, 6 December 2010; Women’s
Initiatives for Gender Justice, Gender Report Card on the International Criminal Court
2012, pp. 132–163; Women’s Initiatives for Gender Justice, Gender Report Card on the In-
ternational Criminal Court 2014, pp. 157–193.
116
Conversations with diplomats and civil society organizations on file with the author.

The first Prosecutor has been the subject of significant critique and
criticism, much of it arguably warranted and justified. But his decisions,
actions and conduct, while part of his professional responsibility as the
Prosecutor, existed within a system that allowed and enabled these factors
to occur. A balanced view of the Prosecutor immediately recognizes that he
brought significant energy and dynamism to the role and displayed an inde-
fatigable ability to generate ideas, interest and prosecutorial activity. His
personal communication and rapport-building skills were an undeniable
asset in his interactions with States Parties, NGOs and the media; his will-
ingness to be the public face of the ICC provided a ready focal point for a
court that may otherwise have seemed even more remote and unknowable.
The Prosecutor’s ability to inspire young people and their interest in inter-
national justice as well as his intuitive understanding of the allure of his
office and the associated ability to engage influencers and celebrities added
to the sense of momentum, purpose and global visibility of the Court. As
asserted in the Reckoning, one of the films made about the ICC and the
Prosecutor, he perhaps did more than anyone to put the Court on the
map. 117 However, if true, having galvanized attention, the Prosecutor was
unable to deliver on his promises to an expectant global audience.
Less ambition would not have been better. Timidity was not the way
forward for a new Court. But the provision of a counter-balance by States
Parties – insisting upon institution-building; being less focused on numbers
(of cases and arrest warrants) in favour of quality; requiring conduct befit-
ting international civil servants; using their oversight responsibilities to en-
sure a solid framework of ethical standards and compliance benchmarks;
and being prepared to use their statutory obligations to address miscon-
duct – could have brought some equilibrium to the Court and reduced the
gap between the expectations generated and the outcomes that materialized.
It would also have safeguarded the Court’s institutional integrity.
It is understandable that the ICC would assume a high level of focus
on its mandate. However, it is difficult for the Court to justify its almost
exclusive focus on the exercise of its jurisdiction with insufficient attention
also devoted to creating a solid and ethical foundation, ensuring the integri-
ty and sustainability of the institution and a reliable base from which it
could fulfil its jurisdictional responsibilities.
117
Pamela Yates and Paco de Onis, The Reckoning: The Battle for the International Criminal
Court, Skylight 2009; Whiting, 2015, see above note 112.

It is eminently conceivable that complacency about the ICC’s institu-

tional integrity may have been rationalized by a belief that the absolute
moral imperative of the Court’s mandate, somehow organically imbibed the
Court’s day-to-day decisions with the same moral superiority, even if the
actions and decisions at hand were objectively unethical, a violation of the
rules or akin to misconduct.
ICC officials and States Parties may have instinctively equated their
actions and decisions as having the same high standing as the mandate of
the Statute. In reality, there is no guarantee that working for or governing
an institution with noble intentions and high aspirations will automatically
infuse every decision with the same fragrance of authenticity. The integrity
of an institution is the sum of its choices, on issues small and large, which
decision-by-decision defines its character. Every individual choice has a
consequence for the whole. Each time a decision was made at the ICC to
ignore the policies, bend the rules, or excuse conflicts of interest, it rein-
forced impropriety, and what started out as just making an exception, soon
became a habit that turned into a practice and evolved into a culture.
The urgency with which Court officials, member States and other
stakeholders wanted the ICC to exercise its jurisdiction may have inadvert-
ently compromised the integrity of the Court as a public institution. Its or-
ganizational foundations were not sufficiently established before it became
operationally active. The Court’s internal control systems and the policies
regulating conduct and conflicts of interest, amongst other areas, were in-
complete, untested or non-existent. Just as importantly, the ICC had not
established an environment in which genuine ethical dilemmas could be
identified and safely discussed as they arose. Once cases began, most insti-
tutional development issues were put on hold, and several aspects of the
organizational bedrock that would ordinarily underpin an international in-
stitution were never completed.
8.6. Ethical Challenges at the ICC
Whilst the ethical challenges before the ICC are substantial, it is important
to make a clear distinction between honest mistakes and impropriety. 118
Many new endeavours will experience errors and set-backs before they ex-
perience success. Mistakes in direction and decision-making can be a rich
118
See M.E. Newhouse, “Institutional Corruption: A Fiduciary Theory”, in Cornell Journal of
Law and Public Policy, 2014, vol. 23, no. 3, Article 2, p. 560.

source of learning for an institution as it refines its practices, further clari-

fies its values, and evolves its organizational culture. 119 There needs to be
room for errors to occur in order for innovation to exist. In this context, the
ICC has made honest mistakes. This was inevitable given its challenging
jurisdictional mandate, the complexity of the contexts within which it is
working, the newness of the institution, and as the Statute was translated
into practice.
In addition to genuine good-faith mistakes, the ICC has also faced
avoidable ethical transgressions. Patterns of impropriety and the exercise of
questionable individual and institutional integrity have had a corrosive ef-
fect on the culture of the ICC.
Importantly, all stakeholders – ICC officials and staff, States Parties
and civil society – share some responsibility, to varying degrees, for the
fragility of the Court’s institutional integrity because each one, with few
exceptions, has been willing to overlook impropriety at the ICC when it
occurred and to remain silent. The high level of conformity to this practice
by genuine supporters of the Court may have unintentionally contributed to
a collective deception about the Court’s institutional well-being and its eth-
ical resilience. It may also have led to under-estimating the important link
between the ICC’s institutional integrity and its legitimacy as a trusted pur-
veyor of global justice in an increasingly polarized world. Not only is it
critical for the Court to maintain or regain its credibility but, as Karim
Khan urges, we must also be aware of what is at stake in the politically
fractured environment around international justice, warning that, “an un-
derstanding of what we could lose must be born very close to one’s heart
and upper most in one’s mind”. 120
The ethical challenges confronting the ICC can be characterized into
three major categories of vulnerability, which will be listed in turn:
1. public crises arising from serious misconduct by individual staff or
Court officials, some of which have been exposed by the media;
2. checks and balances at the ICC that have at times lacked rigour, and
internal oversight mechanisms that have at critical moments wanted
independence or ability to fulfil their mandates; and
119
See, for example, Amy Rees Anderson, “Good Employees Make Mistakes, Great Leaders
Allow Them To”, Forbes, 17 April 2013; Brené Brown, Dare to Lead, Random House, 2018.
120
Karim A.A. Khan, “Integrity and the Limits of Internal Oversight Mechanisms”, CILRAP, 2
December 2018, at 14-14.18 minutes (www.cilrap.org/cilrap-film/181202-khan/).

3. insufficient infrastructure to support and ensure the Court’s institu-

tional integrity.
8.6.1. Public Crises Exposed by the Media
The revelations in the public domain include:
• allegations regarding conflicts of interest of the former Prosecutor
since leaving office and possible attempts to interfere in an ongoing
ICC case; 121
• allegations regarding the leaking and/or sharing of confidential mate-
rial by the staff of the OTP to the former Prosecutor relevant to an
individual client for whom the former Prosecutor was providing con-
sultancy services; 122
• the OTP sharing confidential information related to its investigations
and cases with selected States Parties; 123
• OTP staff moonlighting in roles which are in conflict with their status
as employees of the ICC along with alleged attempts to conceal these
activities; 124
• abuse of power, and retaliatory and bad faith behaviour by the Regis-
trar; 125
• the illegality of the restructuring project of the Registry; 126
121
Becker, Blasberg and Pieper, 2017; EIC Network, 2017; Maupas, 2017; Thompson, 2017,
see above note 18. In 2017, a series of media reports revealed allegations regarding improp-
er and potentially unlawful activity by the former Prosecutor, Moreno-Ocampo, and staff
employed by the OTP. The allegations involved the provision of confidential information
about the OTP’s ongoing investigation in Libya, by staff of the OTP, to Moreno-Ocampo
based on its relevance to one of his clients, a Libyan national. Amongst several issues, the
media reports also allege that OTP staff members provided communication and other assis-
tance to the former Prosecutor in relation to this same client. It is also alleged that the former
Prosecutor may have attempted to intervene in the OTP’s cases in the Kenya Situation.
122
Ibid.
123
Ibid.
124
Ibid.
125
Administrative Tribunal of the International Labour Organization (‘ILOAT’), A. v. ICC,
Judgment No. 4003, paras. 15 and 17 (‘Judgment No. 4003’) (https://www.legal-tools.org/
doc/iu7r5q/).
126
ILOAT, F. v. ICC, Judgment No. 3907, para. 26 (‘Judgment No. 3907’) (https://www.legal-
tools.org/doc/w87k12/).

• the alleged rape of ICC witnesses by Registry staff in safe houses in

the Democratic Republic of the Congo over an extended period of
time; 127
• the International Labour Organisation and Tribunal (‘ILOAT’) judg-
ment regarding the unlawful dismissal of an OTP staff member by
the Prosecutor in retaliation for the employee reporting allegations of
serious misconduct by the Prosecutor in the course of his official du-
ties; 128 and
• the failure by the ICC to meet its duty of care to its staff, including
its failure to ensure the necessary security protocols were implement-
ed to guarantee the safety of staff members on a mission in Libya. 129
This resulted in the staff members being held by a Libyan militia
group for over three weeks and an international incident in which the
reputations of the staff were impugned in the media as a result of the
ICC failing to take responsibility for sending staff on the mission
without the required Memorandum of Understanding with the Libyan
authorities. 130
For most of these serious incidents, there has not been any demon-
strable accountability by the Court, internally, to States Parties or to the
public, regarding its actions, if any, to address those responsible, tackle the
underlying institutional culture or examine the weaknesses in the oversight
system. For their part, States Parties have been consistently willing to look
the other way, especially when the misconduct involved Court officials.
There are two exceptions to this pattern that demonstrate a level of
willingness by the Court to apply limited accountability measures when
under significant external pressure to do so.
The first was in relation to the independent inquiry initiated by the
Registry in 2013 into the sexual assault of ICC witnesses followed by a
public report summarizing the key findings and recommendations to ad-
dress practices within the Victims and Witness Unit. 131 Prior to the active
127
Court 2013, pp. 235–241 (‘Gender Report Card 2013’).
128
ILOAT, Judgment No. 2757, paras. 2–20 (https://www.legal-tools.org/doc/73bd48/).
129
Judgment No. 4003, para. 16, see above note 125.
130
Ibid.
131
The Court’s report is no longer on the ICC web site; Gender Report Card 2013, pp. 238–241,
see above note 127.

involvement of the President of the ASP, and a few States Parties that
strongly urged the Court to address these issues and whose interventions
were triggered by civil society, the Court did not appear to have taken any
serious action to investigate and determine the systemic issues enabling the
rape of witnesses by ICC staff members. 132 States were alerted to this crisis
in a letter by civil society submitted to the Presidents of the ASP and the
Court along with a small number of selected States Parties, drawing their
attention to the serious incident and calling for an independent inquiry. 133
The prompt action of the ASP President and States successfully invoked a
response from the Court.
The second exception was the OTP’s response to the numerous alle-
gations made in the media between September and October 2017 involving
the former Prosecutor and two OTP staff members. 134 The current Prosecu-
tor referred these issues to the IOM for investigation as well as to the Dis-
ciplinary Advisory Board whose review and recommendations ultimately
resulted in the dismissal of the staff members involved for serious miscon-
duct. 135 A summary of the OTP’s response to the specific allegations as
well as steps taken by the office to strengthen standards of integrity and
personal conduct was presented to States Parties in The Hague Working
Group in November 2018 and subsequently made available to States Par-
ties in the context of the ASP later that same year. 136
However, for the most part, the Court, with the complicit agreement
of other stakeholders, has generally taken the position that acknowledging
and addressing wrongdoing would undermine the ICC’s reputation; and, as
a result, its pattern over many years has been to ignore, deny, conceal or
deflect. The challenge with this approach is that it further embeds impro-
priety into the organizational culture and prolongs the vulnerability of these
episodes for the Court because inevitably, as has been demonstrated by the
series of media revelations, these issues will eventually be exposed. While
132
Ibid., pp. 235–241.
133
Ibid., pp. 235–237. Letter from the Women’s Initiatives for Gender Justice.
134
see above note 18.
135
ICC, Briefing by the Prosecutor, 14 November 2018, ICC-ASP/17/INF.5, paras. 18, 24(a),
24(c) (‘Prosecutor’s Briefing’).
136
Ibid.; see also comments by Deputy Prosecutor, James Stewart, “The Legal Requirement of
Individual Integrity and the Prosecution of International Crimes”, CILRAP Film, The Hague,
1 December 2018 (https://www.cilrap.org/cilrap-film/181201-stewart/).

they exist, they are ripe for exploitation by those who may want to discredit
the Court. As many institutions, governments and private sector leaders
have learned the hard way, cover-ups, obfuscation and dishonesty are often
more damaging to public trust than the original error.
In addition to affecting its external reputation, integrity issues are al-
so demoralizing for ICC staff, 137 who are predominantly rule compliant and
exercise their personal ethics within the workplace. But they also take their
cues from those higher up. The ethical culture of an institution affects the
ability of good people to do the right thing. 138 This becomes increasingly
challenging when there are no consequences or inadequate consequences
for violations, or when the violations involve senior leaders and Court offi-
cials. A lack of healthy accountability both for individuals and the institu-
tion is one of the hallmarks of an ethically fragile system.
8.6.2. Checks and Balances
Leadership and oversight of the ICC are responsibilities shared between the
Court and States Parties. Put simply, the ICC, specifically through the
heads of organs, is responsible for the day-to-day leadership, decisions and
operations of the Court, whereas States, through the ASP, are responsible
for the overall governance of the ICC.
With respect to the Court’s functions, it has been slow and unrespon-
sive to the usual checks and balances essential to the effective internal
oversight of a complex organization. At times, these mechanisms have
lacked rigour and during critical periods for the Court, the independence of
the internal oversight mechanisms has been compromised or they have
been unable to fulfil their mandates. Similarly, the ASP and its key subsidi-
ary bodies have been narrowly focused with respect to their governance
responsibilities with the exception of the annual forensic budget review
process. Although the ASP adopted resolutions regulating the Court, it has
done little to monitor the Court’s compliance with the legal framework. It
has also consistently ignored and underfunded the oversight system.
137
138
See, for example, Caterina Bulgarella, “Why good words can produce bad acts”, in FCPA
Blog, 26 June 2018.

8.6.2.1. Internal Oversight

The history of the OIA is one piece of the puzzle about where and how the
institutional ethics and integrity of the Court went off track so quickly.
The OIA was established under Rule 110.1 of the ICC’s Financial
Regulations and Rules adopted at the first plenary of the Assembly of
States Parties, held 3-10 September 2002. 139 Its mandate was set out in the
Financial Regulations and in the 2003 Report of the CBF adopted by the
ASP wherein
the internal auditor should be able to decide his or her annual
work programme independently, including any issues raised
by the Committee, and that the internal auditor should submit
an annual report about the activities of the Office to the As-
sembly, through the Committee. 140
The OIA commenced operations in July 2004 and for the first three
years, 2005-2007, it provided reports directly to the ASP. 141 These are the
only internal audit reports submitted directly to the Assembly and the only
reports produced by the OIA that are publicly available. The reports sum-
marized its activities in some detail, including work it had undertaken on
its own initiative as well as audits conducted at the request of the heads of
organs and other managers, as they were confronted with a range of institu-
tion-building issues. The OIA reported on these audits with a summary of
its main findings and recommendations, as well as management’s respons-
es to its recommendations in general terms. It identified issues and areas
for attention, supported the progress being made by the Court, and provid-
ed a number of constructive suggestions, appropriate for an office of inter-
nal audit and consistent with its oversight responsibilities.
Despite the mandate, role, and reporting lines of the OIA being ad-
dressed by the financial regulations and the 2003 CBF report, respectively,
a sense of “ambiguity existed within the Court concerning how the office
139
ICC, Financial Regulations and Rules, 3-10 September 2002, ICC-ASP/1/3, Part II-D
(https://www.legal-tools.org/doc/6158e2-1).
140
Official Records of the Assembly of States Parties to the Rome Statute of the International
Criminal Court, 8-12 September 2003, ICC-ASP/2/10, Section II, para. 29 (https://www.
legal-tools.org/doc/446e04).
141
ICC, Report of the Office of Internal Audit, 3 August 2005, ICC-ASP/4/4 (‘ICC-ASP/4/4’)
(https://www.legal-tools.org/doc/3zz1ki/); ICC, Report of the Office of Internal Audit, 4 Au-
gust 2006, ICC-ASP/5/5 (‘ICC-ASP/5/5’) (https://www.legal-tools.org/doc/k4ukb6/); ICC,
Report of the Office of Internal Audit, 17 July 2007, ICC-ASP/6/7 (‘ICC-ASP/6/7’) (https://
www.legal-tools.org/doc/marcyi/).

would operate and report in practice”. 142 In response to this “ambiguity”

and in an act of good faith, the Director of OIA commenced a process of
working with the heads of organs to develop the Charter for Internal Audit
for the Court, which was adopted by the Coordination Council (comprised
of the three heads of organs – the President, the Prosecutor and the Regis-
trar) in June 2005. 143
According to the first report of the OIA to the ASP, the Charter clari-
fied and elaborated the legal mandate of the office, including its operating
and reporting mechanisms, and described the interface between the Exter-
nal Auditor and the OIA. One of the key features of the Charter was the
establishment of an Oversight Committee whose main function was to “act
as an advisory panel to the Office of Internal Audit in the exercise of its
audit functions and to monitor the implementation of relevant recommen-
dations”. 144
The composition of the Oversight Committee was designated to the
heads of organs, with the OIA providing secretarial support. 145 Although
external experts could be added to the Oversight Committee, the primary
roles were dedicated to the heads of organs. 146
The Charter left it to the Oversight Committee to determine the terms
of its working relationship with the CBF, 147 and gave authority to the
Oversight Committee to decide on the dissemination of audit reports, ex-
cept for those audits requested by the CBF or the ASP. 148 In other words,
the findings of audits into certain areas of work, if requested by a head of
organ, could be concealed from the oversight of the CBF, the External Au-
ditor and the ICC’s governance body, the ASP. Such audit reports do not
always need to be made public, but they should be made available to the
governing structures, including the External Auditor for review. Creating
the ability to withhold the audit reports from the governing authorities cre-
142
143
Ibid., Annex 1, para. 7(i).
144
Ibid., Annex 1, para. 4(ii).
145
Ibid., Annex 1, para. 4(iv).
146
Ibid., Annex 1, para. 4(iii).
147
Ibid.
148
Ibid., Annex 1, para. 4(ii): “The Oversight Committee authorizes the dissemination of audit
reports, except for those requested by the Committee on Budget and Finance pursuant to
paragraph 29 of the report on the work of its third session, August 2003, or those requested
by the Assembly of States Parties”.

ated the potential to reduce the oversight of the Court’s institutional activi-
ties by the Assembly.
The stated intention of the Oversight Committee was to enhance co-
operation between the organs and the OIA. However, the provisions in the
Charter assigned a significant level of power to the heads of organs with
respect to the focus, findings and reporting of the internal audits. Although
the Charter was undertaken by the OIA in good faith, the use of the provi-
sions by the heads of organs marked a negative turning point for the Office
that contributed to undermining its full independence and curtailing the
robust exercise of its mandate.
Simultaneously in 2005, as the Court was establishing the Oversight
Committee, the External Auditor recommended the establishment of an
independent Audit Committee. 149 This recommendation was echoed by the
CBF. 150 It seems that the instigation of an Oversight Committee created by
the heads of organs and the recommendation to establish an Audit Commit-
tee by the Auditor and CBF were on two separate tracks with distinct and
different motivations. The former appears to have been intended to contain
the work and scrutiny of the OIA, reduce its independence, and avert its
ability to report to the ASP and the CBF on all of its findings. The intention
of the latter appears to have been to strengthen the ICC’s internal controls,
add further expertise and independence, and to work with the OIA. This
divergence led to an impasse between the ASP and the Court with respect
to the independent functioning of the OIA, and the expertise required on
the Oversight and Audit Committees to support these most fundamental
and important components of the system of internal oversight.
As early as 2006, major tensions had reportedly arisen between the
OIA and the heads of organs with the latter wanting to limit the OIA’s abil-
ity to report major findings of its internal audits to the CBF and ASP. 151
Observing these tensions, the CBF noted that:
While it was satisfied that the Office of Internal Audit had
now fully assumed its functions as confirmed by a peer review
carried out by the National Audit Office, the Committee could
not escape the impression that the relationship between the
Court and the Office of Internal Audit was adversely affected
149
150
Ibid.
151

by a misunderstanding on both sides as to the role of internal

oversight. 152
According to the CBF, Court officials seemed “to be generally uneasy
about the Internal Auditor’s right and obligation to report major findings to
the Committee and to the Assembly and would prefer the Office to be an
exclusively internal controlling instrument”. 153 The CBF also noted on the
other hand that the OIA, “must not limit itself to detecting irregularities and
uncovering administrative weaknesses, but should more strongly empha-
size the goal of working in partnership with management to improve the
overall performance of the Court”.
Conscious of the tension, the CBF, “urged both sides to work for a
better understanding of their respective roles. The Court’s Internal Over-
sight Committee, in particular, was called upon to work towards that goal.
The early inclusion of external experts in the Internal Oversight Committee
would be helpful in that endeavour”. 154
A review of the OIA reports from this period does not appear to sup-
port the assessment of a one-sided focus on the detection of problems by
the OIA without the intention to work together to improve the performance
of the Court. On the contrary, the OIA reports appear to be even-handed,
often encouraging and noted that the ICC was making progress. The reports
also indicate that the OIA consistently demonstrated its willingness to work
with the Court’s management. In its first three years of operation, the Of-
fice made a number of recommendations aimed at, “assisting management
to strengthen internal controls, operate more efficiently, realize potential
cost savings and ensure compliance with governing authorities”. 155 These
activities appear to be strongly in line with the functions of an office re-
sponsible for internal audits.
In 2007, the relationship further deteriorated with limited responses
from Court officials to the OIA’s audit findings, as well as insufficient in-
formation provided by the ICC for the internal audits. 156 The heads of or-
gans were also non-compliant in their interactions with the Office of the
Controller and failed to provide this office with the required reports and
152
Ibid., para. 25.
153
Ibid., para. 26.
154
Ibid., para. 27.
155
ICC-ASP/6/7, p.4, see above note 141.
156
Ibid., p. 5.

updates regarding their progress implementing substantive recommenda-

tions made by the External Auditor. 157
In September 2007, the CBF raised concerns with the Court regard-
ing the lack of implementation of the external audit recommendations and,
“the pace of progress in appointing non-executive members [external
members] to the Audit Committee, developing a risk management frame-
work, and implementing a statement of internal control”. 158
At the CBF’s meeting in September, it appears that the Committee
acquiesced to the discomfort of the heads of organs regarding the inde-
pendence of the OIA and its ability to report to the ASP. The Committee
made critical decisions at this meeting that altered the independence of the
OIA and curtailed its ability to scrutinize the Court. Firstly, it designated to
the Audit Committee the ability to approve the annual work plan for the
OIA, thus giving the heads of organs the ability to determine the areas and
scope of the OIA’s internal audits. 159
Secondly, the CBF cut off the OIA’s ability to submit reports about
internal compliance and audits directly to the ASP for their review and con-
sideration. 160 Instead, it required that the OIA report only to the CBF,
which would then decide whether there were any issues it wished to draw
to the ASP’s attention. This placed significant power to vet and filter in-
formation in the hands of the CBF rather than these reports being consid-
ered by the wider membership of the ASP. It also curtailed the ability of the
ASP to fully govern. To make matters worse, the CBF also declared that
the OIA should report to it through the chair of the Audit Committee,
which at that time was one of the principals of the Court operating within a
committee dominated by all of the heads of organs. 161 Subsequently, the
ICC Financial Regulations and Rules were amended specifying the change
in this reporting line. 162
157
Ibid.
158
ICC, Report of the Committee on Budget and Finance on the work at its ninth session, 28
September 2007, ICC-ASP-6/12, para. 21 (‘ICC-ASP-6/12’) (https://www.legal-tools.org/
doc/1eamh2/).
159
Ibid., para. 22.
160
Ibid.
161
Ibid.
162
ICC, Amendments to the Finance Regulations and Rules, Assembly of State Parties Resolu-
tion, adopted on 14 December 2007, ICC-ASP/6/Res.5 (https://www.legal-tools.org/doc/
3a62e0).

Lastly, the CBF recommended that the OIA focus its work on provid-
ing the Registrar, as the ICC’s accounting officer, with assurances and ad-
vice regarding the effectiveness of the management and control systems. 163
Combined with the other changes, this had the effect of pulling the OIA too
close to the Registry and increasing the communication and eventual influ-
ence of the Registrar on the work of the OIA. In practice, the OIA came to
‘report’ to the Registrar by default, especially following the collapse of the
Audit Committee between 2012 and 2016, and in the absence of effective
oversight by the CBF. This further reduced the level of independence nor-
mally expected of an internal audit office.
These far-reaching changes were taken further by the Audit Commit-
tee in August 2008 when the heads of organs revised the Terms of Refer-
ence for the Audit Committee and established a model which according to
the CBF “differed from the one recommended previously by the External
Auditors, the ASP and the Committee on Budget and Finance” and ensured
that the balance of power was firmly with the heads of organs. 164 Contra-
dicting the 2006 recommendations from the Auditor and the CBF that the
Audit Committee should be composed of a majority of external members
and chaired by an external member, the Court insisted upon the composi-
tion of three Court members (the Principals) and two external members. 165
Going even further, the Court insisted that it would appoint the two exter-
nal members. 166 In addition, whereas the model advocated by the CBF
would provide “advice to management and add independent oversight to
the audit function”, according to the CBF the Audit Committee established
by the Court, “‘was a management committee with some external mem-
bers”. 167
All of these changes appear to demonstrate a level of determination
on the part of the principals, to strip the OIA of any independence and curb
the activities, scope, findings and dissemination of its reports. The OIA was
163
ICC-ASP-6/12, para. 22, see above note 158.
164
ICC, Report of the Committee on Budget and Finance on the work of its eleventh session,
31 October 2008, ICC-ASP/7/15, para. 24 (‘ICC-ASP/7/15’) (https://www.legal-tools.org/
doc/1q3lhk/).
165
Ibid., para. 25.
166
ICC, Report of the Committee on Budget and Finance on the work of its tenth session, 26
May 2008, ICC-ASP/7/3, para. 19 (https://www.legal-tools.org/doc/oe4mh7/).
167

the only internal mechanism providing any kind of oversight and acting as
a control function within the Court until 2016.
Failure to safeguard the independence and impartiality of the OIA
appears to have been one of the significant stumbling blocks for the ICC
regarding its institutional integrity. Many of the unlawful and unethical is-
sues it has faced may have been averted, and/or identified earlier had the
full independence of the OIA been preserved. The harm caused to the Court
by the patterns of impropriety, mostly by Court officials and senior manag-
ers, may have been reduced, and a culture of accountability could have
been fostered, had the OIA been properly supported and enabled to fulfil its
mandate.
The Audit Committee ceased to operate in 2012 and was formally
terminated in 2014. 168 New Terms of Reference were drafted by an ad hoc
Committee, and a new composition of membership was designed com-
prised of only external members and members of the CBF. 169 The Audit
Committee was reconstituted in 2015 and became operational with a new
charter in 2016. 170 Finally, after 13 years of ICC operations, the ASP insti-
gated a dedicated entity with responsibilities for: governance; risk man-
agement; values and ethics; internal control framework; oversight of inter-
nal and external audit; and financial statements and public accountability
reporting. 171
With the restoration of a credible structure for the Audit Committee,
the OIA now reports to this body. 172 In 2014, the OIA was elevated to a ma-
168
ICC, Report of the Committee on Budget and Finance on the work of its twenty-third ses-
sion, ICC-ASP/13/15, 18 November 2014, paras. 132–135 (‘ICC-ASP/13/15’) (https://
www.legal-tools.org/doc/iv9xys/). It was subsequently disbanded on 13 February 2015 by
Presidential Directive, ICC-ASP/PRESD/G/2015/001 (https://www.legal-tools.org/doc/
75fbb6/).
169
ICC, Report of the Committee on Budget and Finance on the work of its twenty-fifth, Char-
ter of the Audit Committee, 9 November 2015, ICC-ASP/14/15, Annex IV, Section E, pa-
ra. 10 (‘ICC-ASP/14/15’) (https://www.legal-tools.org/doc/575aqd/).
170
Ibid., Section C, 2, paras. 140–141; ICC, Official Records of the Assembly of States Parties,
ICC-ASP/14/20, vol. II, Part B, B.3 (https://www.legal-tools.org/doc/156059/).
171
ICC, Charter of the Audit Committee, annexed to Report of the Committee on Budget and
Finance on the work of its Twenty-Fifth session, 9 November 2015, ICC-ASP/14/15, Sec-
tion B, paras. 2–3 (https://www.legal-tools.org/doc/575aqd/).
172
ICC, Resolution on the Programme budget for 2016, the Working Capital Fund and the Con-
tingency Fund for 2016, scale of assessments for the apportionment of expenses of the In-
ternational Criminal Court and financing appropriations for 2016, 26 November 2015, ICC-

jor programme within the Court’s budget with its own dedicated budget
line, further underscoring its independence. 173 The Audit Committee ap-
proves and monitors implementation of the OIA’s annual audit plans. In
practice, the agreement of the head of organ is still required to enable the
OIA to proceed with an audit into areas under their authority and leadership.
Their co-operation with the audits is an important part of the process.
With the active oversight being exercised by the Audit Committee,
the OIA has been directed to implement a significant backlog of urgent au-
dit recommendations. Since its re-establishment, the Audit Committee has
implored the Court to: provide the OIA with the timely information it needs
to perform its mandate: co-operate with it in addressing the high number of
unimplemented audit recommendations; 174 do more with respect to risk
management; 175 and allow the OIA to attend decision-making meetings
when issues of risk management and governance are discussed. 176 In re-
sponse, the ICC has made some concessions but mostly declined these
suggestions.
The Audit Committee has a critical role to play in raising the ethical
standards of the ICC as an international public institution through the pro-
vision of impartial, principled and objective oversight. The challenge for
the Committee will be in finding the right balance between respectful and
open communication with Court officials in which it is sincerely receptive
to the genuine challenges faced by the Court. At the same time, it is com-
pelled to remain objective and impervious to the ongoing reluctance dis-
played by the ICC with respect to addressing issues of risk management,
amongst other areas. It must also remain vigilant in exercising its own in-
dependent assessments rather than simply echoing or relying upon the CBF,
given this Committee has acquiesced to the demands of Court officials on
more than one occasion, whilst also recognizing the significant expertise of
this Committee, its institutional knowledge and its proximity to the detail
ASP/14/Res.1, Section K, para. 1 (‘ICC-ASP/14/Res.1’) (https://www.legal-tools.org/doc/

2c9828/).
173
174
See, for example, ICC, Report of the Committee on Budget and Finance on the work of its
twenty-seventh session, 28 October 2016, ICC-ASP/15/15, Annex VII, Section II, C, pa-
ras. 32–37 (‘ICC-ASP/15/15’) (https://www.legal-tools.org/doc/12c964/).
175
176

of the budget issues. The Audit Committee’s credibility and that of the
Court are closely aligned.
8.6.2.2. Independent Oversight Mechanism
Complementing the OIA, is the IOM. Article 112(4) of the Rome Statute
stipulates that:
The Assembly may establish such subsidiary bodies as may be
necessary, including an independent oversight mechanism for
inspection, evaluation and investigation of the Court, to en-
hance the efficiency and economy.
First proposed in 2005 by the ASP President, Ambassador Prince Zeid Al-
Hussein, a mandate establishing an IOM with investigative, evaluation and
inspection functions was eventually adopted by the ASP at its eighth ses-
sion in 2009. 177 However, it took until 2013 for the ASP to adopt a resolu-
tion establishing the operational components and parameters of its three-
pronged mandate; 178 and until 2015 for the IOM to be operational with the
hiring of a head of office. It took a further two years for the IOM to be fully
operational with the hiring of all of its designated staff positions. 179 It was,
therefore, not until 2017 that the ICC finally had in place a mechanism that
could address issues of misconduct and serious misconduct allegedly
committed by elected officials, staff, and contractors of the ICC. 180
The primary initial obstruction to the creation of the IOM emanated
from the OTP, specifically the Prosecutor, the Executive Committee, and
senior policy staff. The OTP’s opposition to the mechanism was active be-
hind the scenes for several years before coming into full view at the eighth
session of the ASP in 2009. As with earlier responses to oversight and ac-
countability initiatives, the main reason for the OTP’s opposition to the
proposed mandate of the IOM related to concerns about potential infringe-
ments upon the independence of the office. Specifically, the OTP argued
that: the IOM could interfere with the running of the Office and the Prose-
cutor’s autonomy over its management; the IOM’s proprio motu powers to
177
ICC-ASP/8/Res.1, see above note 65.
178
ICC, Independent Oversight Mechanism, 27 November 2013, ICC-ASP/12/Res.6 (‘ICC-
ASP/12/Res.6’) (https://www.legal-tools.org/doc/64ebeb/).
179
Report of the Committee on Budget and Finance on the works of its twenty-ninth session, 3
November 2017, ICC-ASP/16/15, para. 136 (‘ICC-ASP/16/15’) (https://www.legal-
tools.org/doc/n4gove/).
180
ICC-ASP/8/Res.1, para. 6(c), see above note 65.

open an investigation into allegations of misconduct against staff or elected

officials should be constrained by the requirement for the approval from, or
only initiated at the request of the relevant head of organ; and that the pro-
prio motu powers of the IOM could be weaponized by “malicious third
parties” against the OTP in an attempt to affect its operations. 181
Given the concerns about the professional environment within the
OTP and the perception of a high tolerance for behaviour ranging from
‘bending the rules’ to serious misconduct, some stakeholders supported the
original proposal for the IOM mandate, including its ability to exercise its
proprio motu powers to initiate an investigation without prior approval of
the heads of organs, a proposal to which the Prosecutor was specifically
opposed. 182 These actors viewed the intensity of the Prosecutor’s objections
as conforming with his persistent and ongoing aversion to checks and bal-
ances. Others genuinely shared most or several of the Prosecutor’s con-
cerns and joined the OTP’s call for delaying the adoption of the operational
mandate. 183 Both the ICC President and Registrar distanced themselves
from the Prosecutor’s opposition to the IOM and publicly stated their sup-
port for the mechanism, without further delays. 184 Despite a compromise
being reached at the ninth session of the ASP whereby the procedures gov-
erning the exercise of the IOM’s investigative capacity conformed to the
181
For a discussion on these issues, see Max du Plessis and Christopher Gevers, “The Inde-
pendent Oversight Mechanism Argument is not merely about Administration Functions, but
is Situated in a Boarder Debate Over the Role of the Assembly of States Parties”, ICCForum,
6 May 2011 (available on its web site); and ICCForum, Invited Experts on Oversight Ques-
tion, May –September 2011 (available on its web site).
182
Within civil society organizations, the American Coalition of NGOs for the ICC and the
Women’s Initiatives for Gender Justice were amongst the earliest, most vocal and most con-
sistent supporters of the IOM. See, for example, Women’s Initiatives for Gender Justice,
Gender Report Card on the International Criminal Court 2009, p. 35; Gender Report Card
on the International Criminal Court 2010, pp.71-72; Gender Report Card on the Interna-
tional Criminal Court 2011, pp. 339–340; Gender Report Card on the International Crimi-
nal Court 2012, pp. 285–287; Gender Report Card on the International Criminal Court
2013, pp. 17–24, 243-244; Gender Report Card on the International Criminal Court 2014,
pp. 17–27, 269-270.
183
See, for example, Human Rights Watch, “Memorandum for the Ninth Session of the ICC
Assembly of States Parties”, 16 November 2010, Section II, B; and International Federation
for Human Rights (‘FIDH’), “Position Paper Ninth Session of the ICC Assembly of State
Parties”, 30 November 2010, No. 551a, p. 18.
184
du Plessis and Gevers, 2011, see above note 181. It was widely known amongst civil society
advocates that the President and the Registrar did not support the OTP’s position that the
approval of a head of organ was necessary prior to the IOM initiating an investigation.

concerns of the Prosecutor, the OTP continued to obstruct the formation of

the mechanism. 185
The stonewalling was effective in delaying the overall establishment
of the IOM for more than 10 years from the time it was first proposed until
it was fully staffed and operational. It also led to the creation of a compli-
cated approval process in order to open an IOM investigation and resulted
in a lack of transparency regarding the results of such an investigation
should it be activated by the head of an organ. In this scenario, it is possible
that only the head of the requesting organ may receive the results of an
IOM investigation and in theory he or she could decline to disclose the re-
sults to the President of the ASP, or to the internal or external auditors.
Overall, the initial obstruction by the OTP, combined with long-term indif-
ference by States Parties to establish and then fund the IOM, delayed the
complete establishment of this critical statutory body.
In an almost inevitable twist of irony, the most public scandal to be
investigated by the IOM to date involved two OTP staff members in rela-
tion to alleged breaches of their duties, with respect to their interactions
and communication with the former Prosecutor, at his behest and after he
had left office. 186 This incident led to discussions within the ICC and
amongst States Parties regarding not only the need to strengthen accounta-
bility within the Court but also to consider possible mechanisms through
which former Court officials could be held accountable for their conduct
while in office, which may only come to light after they have left the ICC,
or for misconduct committed after they have completed their terms. 187 An
abiding obligation exists for former ICC officials to uphold or at least not
to compromise the reputation and independence of the Court.
185
Conversations with diplomats on file with the author.
186
see above note 18.
187
Prosecutor’s Briefing, 2020, paras. 40–42, 45-47, see above note 135; Independent Experts
Review, 2020, paras. 256, R106, see above note 85.

8.6.3. Limited Infrastructure to Support and Ensure the Court’s

Institutional Integrity
In spite of having more than 1,400 staff members, contractors and in-
terns, 188 the Court operates without an ethics and compliance office, an en-
tity common in organizations of this size. There is not even a single com-
pliance or ethics officer within the ICC. The Controller post formerly in the
Registry was one of the first positions abolished in 2014 under the Regis-
try’s restructuring project, known as ‘ReVision’.
According to the Audit Committee, the ICC also does not have an in-
tegrated Court-wide values and ethics framework applicable to all staff. 189
Best practice suggests that a framework alone is insufficient to ensure an
ethical culture, 190 but the absence of this fundamental component is per-
haps emblematic of the lack of priority given to these issues by States Par-
ties, the Court and other stakeholders.
According to the Audit Committee, the ICC does not have a compre-
hensive risk management framework despite recommendations from the
Auditor, echoed by the CBF, since August 2004 calling for greater consid-
eration by the Court for “[implementing] risk management procedures in
its operations and to ensure better planning and implementation of pro-
curement”. 191 Versions of this recommendation have been made repeatedly
by Auditors over many years with little response from the ICC and insuffi-
cient oversight by the CBF and the ASP regarding the implementation of
these requirements. According to the Audit Committee, the Court’s ap-
proach to risk management “does not meet the international standards for
comparable institutions”, 192 despite the challenging environments the ICC
is working in, as well as, its history of underestimating and mismanaging
institutional risks.
188
Report of the Committee on Budget and Finance on the work of its thirtieth session, 31 May
2018, ICC-ASP/17/5, Annex II, p. 43 (‘ICC-ASP/17/5’) (https://www.legal-tools.org/doc/
3037jc/).
189
ICC-ASP/16/15, Annex V, paras. 35,36, see above note 179; Report of the Committee on
Budget and Finance on its work of the thirty-first session, 29 October 2018, ICC-ASP/17/15,
Annex VI, para. 28 (‘ICC-ASP/17/15’) (https://www.legal-tools.org/doc/34xy2r/).
190
See, for example, Lynn S. Paine, “Managing for Organizational Integrity”, in Harvard Busi-
ness Review, March-April 1994 Issue; Caterina Bulgarella, “Why good words can produce
bad acts”, in The FCPA Blog, 26 June 2018.
191
192

Some efforts have been undertaken by the Court; however, these

have not always been strategic. In 2017, the ICC’s first Administrative In-
struction on Risk Management was promulgated by the Registrar and
“takes into consideration International Standard ISO 31000:2009”. 193 Un-
fortunately, this standard was updated by the International Organisation for
Standardization in 2018. 194 Just as the ICC was starting to catch-up with
some of the policy-related benchmarks in the practice of risk management,
the field evolved and the standards changed, making the ICC’s policy on
this issue partially outdated within a year of its promulgation.
During 2018, a Risk Management Committee was established by the
Court and the “owners” of “major risks” participated in training. 195 The
Committee also developed and adopted its Terms of Reference. However,
the Court still does not have a risk management unit, or even a post solely
dedicated to this function. Within the Administrative Instruction, the role of
co-ordinating risk management was designated to the Director of the Divi-
sion of Management Services to oversee. 196 This role was ultimately as-
signed within the Division to an existing position as an add-on function
where it was ultimately approved for reclassification by the CBF as an
Administrative Officer and Risk Management Coordinator. 197 This marks a
small but important development by the Court.
The ICC has never undertaken Court-wide ethics training for its mid-
to-senior level managers, and according to the International Criminal Court
Bar Association, its anti-fraud and whistle-blower policies have not been
fully integrated into the legal framework of the Court. 198
By any standards, this overall level of institutional architecture ap-
pears to be flimsy if not reckless. It evidently does not provide the Court
with the solid anchor and ethical centre needed to hold it sure and steady,
193
ICC Administrative Instruction, Risk Management, 31 March 2017, ICC/AI/2017/003 (‘AI-
Risk Management’) (https://www.legal-tools.org/doc/e928d8).
194
International Organization for Standardization (ISO), Risk management — Principles and
guidelines, November 2009, ISO 31000:2009.
195
ICC-ASP/17/15, Annex VI, Section B, para. 8, see above note 189.
196
AI-Risk Management, para. 1.4, see above note 193.
197
Report of the Committee on Budget and Finance on the work of its thirty-first session, 2
October 2018, ICC-ASP/17/15, Advance version, para. 93 (https://www.legal-tools.org/doc/
oz48xe/); ICC-ASP/16/15, para. 196, see above note 179.
198
International Criminal Court Bar Association, “Legal Analysis: ICC Internal Accountability
Mechanisms and Policies”, ICCBA Legal Advisory Committee, February 2018.

for it to return to as its integrity checkpoint to avert ethical dilemmas and to

chart a course through turbulent waters when these challenges arise.
The Court’s reluctance to develop a robust oversight system is
matched by the reluctance of States Parties to insist upon and fund one.
When the Court has attempted, in good faith, to strengthen its oversight
and ethics capacity it has been forced to do so using existing resources, and
to rely upon other Court personnel for advice and limited training. 199 The
Court has also been asked to do more by States Parties without the support
of additional funds for tasks, such as the development of an organizational
manual, that may genuinely require resources beyond its approved budget.
At the same time, when States Parties have asked the Court to make
more effort concerning risk management 200 or to develop Terms of Refer-
ence for the Coordination Committee of Heads of Organs, 201 the Court has
delayed action, politely declined or made small gestures in some of these
areas.
In addition, the existing internal control elements continue to be un-
derfunded. One school of thought suggests that the budget for internal audit
activities should represent approximately 0.5 to 1.0 per cent of the total an-
nual budget of an organization. 202 Applying this to the ICC, the budget ap-
proved by the ASP for the OIA in 2019 of EUR 685,600 is only 0.47 per
cent of the total budget of the Court, of EUR 144,550,000. 203 A review of
the past five years of ICC budgets reveals that the OIA has been consistent-
ly under-resourced with an average annual funding of 0.48 per cent of the
overall budget designated to support internal audit activities. It would ap-
pear that the continued underfunding of the ICC’s institutional architecture
may be one of the elements contributing to the Court’s ongoing vulnerabili-
ties with respect to its organizational integrity.
Between States Parties and the Court, there has been a leadership
vacuum in relation to institutional integrity and the development of an eth-
199
ICC-ASP/15/15, Annex VII, Section II, para. 22, see above note 174.
200
Ibid., para. 19.
201
ICC-ASP/16/15, Annex V, Section II, paras. 11, 13, see above note 179.
202
ICC-ASP/4/4, para. 9, see above note 141; ICC-ASP/5/5, para. 11, see above note 141.
203
ICC, Assembly of States Parties, “Resolution of the Assembly of States Parties on the pro-
posed programme budget for 2019, the Working Capital Fund for 2019, the scale of assess-
ment for the apportionment of expenses of the International Criminal Court, financing ap-
propriations for 2019 and the Contingency Fund”, 12 December 2018, ICC-ASP/17/Res.4,
para. 1 (https://www.legal-tools.org/doc/obysgj/).

ics-oriented culture. The most recent and most striking example of this
leadership vacuum was with the Registry’s restructuring project (ReVision)
during which all three categories of ethical vulnerabilities were triggered
simultaneously.
8.7. Case Study: ReVision
ReVision was officially launched on 1 January 2014 and was completed on
31 July 2015. 204 During this 18-month period, the project surpassed any-
thing the Court had experienced before with respect to the volume and ra-
pidity of regulatory violations and breaches of ethical standards. ReVision
both exposed and took advantage of the weaknesses in the oversight and
governance system and brought the Court’s institutional integrity crisis to a
head.
This section will examine the restructuring project through an ethics
lens to assess whether the errors associated with ReVision were simply
genuine mistakes made within the context of an ambitious project or rise to
the threshold of institutional corruption.
The purpose of this case study is not to provoke paralysis or de-
spondency. Rather, it is to provide a clear diagnosis of the current status of
the ICC’s institutional integrity as motivation for change and transfor-
mation and to highlight the urgency of these issues. The ICC deserves our
forthright and sympathetic support as well as our candid and loyal criticism.
To examine this further, it is important to consider the tests of institu-
tional corruption and the definitions available to evaluate its existence.
Work in this relatively new field of research by ethicists and academics has
largely focused on public institutions, specifically institutional corruption
with respect to the legislative process of the US Congress, 205 as well as is-
sues of campaign finance of Congressional leaders and their decision-
making. 206
204
ICC, Audit Report of the ReVision Project of the International Criminal Court’s Registry, 9
November 2016, ICC-ASP/15/27, para. 10 (‘Audit Report of ReVision’) (https://www.legal-
tools.org/doc/80a7a5/); Comprehensive Report of the Reorganisation of the Registry of the
ICC, August 2016, p. 29 (‘Comprehensive Report’) (https://www.legal-tools.org/doc/
cbc6cc/).
205
Dennis F. Thompson, Ethics in Congress: From Individual to Institutional Corruption,
Washington, DC, The Brookings Institution, 1995.
206
Lawrence Lessig, Republic, Lost: How Money Corrupts Congress- And a Plan to Stop It,
Twelve publishers, 5 October 2011.

Dennis Thompson, whose foundational work on institutional corrup-

tion opened up this field of inquiry, argues strongly that institutional cor-
ruption is linked to the improper use of public office in contrast to the obli-
gation of a public institution to always act for a public purpose and in the
public good. 207 Thompson does not consider honest mistakes to be indica-
tive of corruption, rather a public institution or process may be considered
corrupt if the decision-making process involves a pattern of influence that
is irrelevant to the deliberations. 208 In his view, people may act with “noble
motives” but may still be “agents” of corrupt practices. 209 In other words,
institutional corruption does not require an intention to corrupt.
In his research, Thompson found that an institution (Congress) acts
for a public purpose, and is therefore not institutionally corrupt, in so far as
it follows a deliberative decision-making procedure in which “members
consider policies based on their merits; treats citizens and colleagues fairly;
and is publicly accountable for their actions”. 210 An institution that adheres
to the above decision-making procedure can be considered to make justifi-
able decisions and therefore is not corrupt, irrespective of the quality or
outcomes of those decisions or whether they proved to be erroneous. Build-
ing on this work, Lawrence Lessig’s research on institutional corruption
examines the effect that dependency on campaign donations has on the leg-
islative activities of the US Congress. Lessig has summarized his definition
of institutional corruption as: “[a]n economy of influence which weakens
the purpose of the institution, especially by weakening public trust of that
institution”. 211
Other researchers have examined concepts of corruption in the con-
text of organizational integrity, the efficacy of compliance frameworks, and
with respect to the distortion of professional independence for those in po-
sitions of trust. 212
207
Thompson, 1995, pp. 1–29, see above note 205.
208
Ibid., 20-21.
209
Ibid., p. 25.
210
Ibid., p. 20; Newhouse, 2014, p. 557, see above note 118.
211
Ibid., p. 554; Lessig, 2011, see above note 206.
212
Garry C. Gray, “Insider Accounts of Institutional Corruption Examining the Social Organi-
zation of Unethical Behaviour”, in British Journal of Criminology, vol. 53, no. 4, April 2013,
pp. 533–551; Eberhard Schnebel, Margo A. Bienet, “Implementing Ethics in Business Or-
ganizations”, in Journal of Business Ethics, Kluwer Academic Publishers, 2004, vol. 53,
pp. 203–211; Kendra Cherry, “How to Recognize and Avoid Groupthink”, in verywell mind,
29 August 2018; Edward J. Romar, “Virtue Is Good Business: Confucianism as a Practical

Some of the challenges acknowledged in this field are the difficulties

in neatly applying the existing definitions of institutional corruption to a
range of different private and public institutions, specifically with respect
to the requirement to clearly identify the intended purpose of the institution.
This difficulty is more prevalent for private companies than public institu-
tions that are inherently tasked with acting on behalf of the public good.
In the case of the ICC, there is no such challenge in determining the
purpose of the ICC and its obligatory mandate as a global public institution
staffed by international civil servants in service to humanity for the sake of
“present and future generations”. 213 Its purpose and its obligation to act for
the public good are clear.
Whilst a number of definitions are available, the components most
commonly utilized to assess institutional corruption, are posited below as
questions with respect to assessing ReVision through a corruption lens.
These include:
• Were merit-based decision-making processes applied throughout
ReVision?
• Were colleagues treated fairly?
• Were interests, other than the objectives of ReVision, the best inter-
ests of the ICC’s mandate and the public interest, at play which influ-
enced the decision-making process during ReVision?
• Were (public) accountability processes applied to those responsible
for ReVision?
• Did ReVision weaken the trustworthiness of the ICC and thus com-
promise the efficacy of the Court?
Business Ethic”, in Journal of Business Ethics, Kluwer Academic Publishers, 2002, vol. 38,
pp. 119–131; Jan Tulberg, “Moral Compliance and the Concealed Charm of Prudence”, in
Journal of Business Ethics, 2009, vol. 89, pp. 599–612; and Lynn S. Paine, “Managing for
Organizational Integrity”, in Harvard Business Review, March-April 1994; Catherin Broad-
man and Vicki Klum, “Building Organisational Integrity”, in Peter Larmour and Nick Wola-
nin (eds.), Corruption and Anti-Corruption, ANU, 2013, pp. 82–96; Peter Roberts, A.J.
Brown and Jane Olsen, “Organisational Commitment”, in Peter Roberts, A.J. Brown and
Jane Olsen (eds.), Whistling While they Work: A good-practice guide for managing internal
reporting of wrongdoing in public sector organisations, ANU Press, 2011, pp. 17–35.
213
ICC Statute, Preamble, see above note 2

The concept of transparency is a widely accepted component of

trustworthy public institutions. The following examination of ReVision will,
therefore, consider transparency as well as the above questions.
It is not necessary for violations of all of the above tests to occur for
the conditions of institutional corruption to be met. Violations of any one of
these would be indicative of corruption.
8.7.1. Background
Undertaking a restructuring of the Registry was widely supported by States
Parties. A number of reports had been commissioned examining the func-
tioning of the Registry that highlighted the need for some reform; 214 and, in
2013 the newly appointed Registrar had positioned himself during the re-
cruitment process on a platform promising an ambitious restructuring
agenda. 215 The intentions of the ReVision project were legitimate, laudable
and worthwhile.
Shortly after taking office in April 2013, the narrative from the Reg-
istrar about the objectives of the restructuring process for the Registry was
that it would increase efficiencies, find synergies with other organs where
possible, and reduce costs. 216 The confidence of the Registrar was such that
even before ReVision began, he recommended that the inevitable savings
generated by the restructuring should be given to the OTP, which, in his
view, needed more funding. 217
The initial objectives of ReVision adopted by States Parties in No-
vember 2013, were for the project to reduce costs including a minimal
structural reduction of 3 per cent, increase efficiencies, eliminate duplica-
tion and create synergies with other organs of the Court. 218 This was to be
achieved within the budget envelope of EUR 42.9 million associated with
214
Audit Report of ReVision, paras. 15(a-h) and 16, see above note 204.
215
Ibid., para. 17.
216
Presentations by the Registrar to NGOs and States Parties; Conversations in 2013 with dip-
lomats on file with the author; Report of the Committee on Budget and Finance on its work
of its twenty-first session, 4 November 2013, ICC-ASP/12/15, para. 82 (https://www.legal-
tools.org/doc/kdybms/).
217
Presentations by the Registrar to NGOs and States Parties, respectively; conversations in
2013 with diplomats on file with the author.
218
ICC, Assembly of States Parties Resolution to the Rome Statute of ICC, adopted at the
twelfth plenary meeting on 27 November 2013, vol. I, part III, ICC-ASP/12/Res.1, Section
H, para. 3 (https://www.legal-tools.org/doc/7a9071/).

staff costs and 560 staff positions approved for 2014. 219 According to the
Audit Report of the ReVision Project of the International Criminal Court’s
Registry (the ‘Audit Report’) these objectives were changed at the follow-
ing ASP in December 2014, when the Assembly renewed the authorization
to reorganize the Registry but removed from the objectives, the intention to
generate savings and the need to eliminate duplication, increase efficiencies
and seek synergies with other organs. 220 That left, increasing efficiencies
within the Registry as the only formal objective of the restructuring.
However, the Official Records of the ASP in 2014 explain the objec-
tives differently and indicate that within the context of the restructuring, the
Registrar was tasked with continuing to identify savings “throughout the
[sic] 2014 and beyond”, to find additional synergies, as well as efficiencies,
and to report on these items, “after completion of the ReVision project”. 221
In contrast with the Audit Report of ReVision, there is a clear indication in
the Official Records that more than efficiencies were required and formed
part of the objective of the restructuring process.
Ambiguity about the objectives was reinforced by the Registrar who
at times asserted that savings were not a component of the ReVision project
whilst also continuing to talk to States Parties about savings up until two
months before the end of the project, including in the report on the results
of the restructuring submitted to States Parties on 4 May 2015. 222 It was
therefore understandable that most States Parties continued to expect sav-
ings as a result of the restructuring, 223 even though it was later claimed that
it had been eliminated as one of the formal objectives.
After ReVision was completed, the Registrar along with members of
his office, vehemently and repeatedly stated in meetings with NGOs and
219
Audit Report of ReVision, para. 6, see above note 204. The Audit Report notes that there
was a slight decrease in the approved budgets between 2014 (EUR 65,684,900,000) and
2015 (EUR 65,025,900,000). However, the critical figured approved by the ASP for the staff
costs related to the restructuring process was EUR 42,900,000. For clarity, see ICC, Official
Records, Fourteenth Session, ICC-ASP/14/20, 18-26 November 2015, vol. II, part B.2, pa-
ra. 10.
220
Audit Report of ReVision, paras. 6–8(a)(b), see above note 204.
221
Official Records of the Assembly of States Parties to the Rome Statute of the ICC, 8-17
December 2014, ICC-ASP/13/20, vol. I, Annex IV, Section F, para. 28 (https://www.legal-
tools.org/doc/8485ce).
222
ICC, Report on the review of the organizational structure of the Registry, 4 May 2015, ICC-
ASP/14/18, Executive Summary (https://www.legal-tools.org/doc/omfqht/).
223
Conversations with diplomats in 2015 on file with the author.

States Parties, respectively, that savings in the Registry’s budget had never
been an objective of the restructuring. 224 Whilst a level of ambiguity about
this objective may have emerged, it was not accurate to deny its existence,
as indicated in the Official Records. In addition, the Registrar had actively
kept this probability alive, and in the minds of many States Parties it re-
mained a highly desirable expectation. Their assumptions on this issue
were abruptly refocused when the Registry submitted its post-restructuring
budget for 2016 requesting a 26 percent increase in funding to implement
the new structure designed as a result of the re-organization. 225
According to experts in the field of institutional corruption, setting
ambiguous and confusing workplace objectives and/or unrealistic expecta-
tions can facilitate an environment in which those responsible for meeting
the objectives may resort to exaggeration, carelessness or misrepresenta-
tion. 226
The ambiguity of the objectives and the creation of confusing or un-
realistic expectations by both States Parties and the Registrar was an im-
portant precursor, amongst other factors, with respect to the credibility of
the process and the manner in which this project was implemented.
8.7.2. Examination
Three specific decisions provide compelling examples against which to
apply the five test questions and transparency elements with respect to ex-
amining potential institutional corruption.
8.7.2.1. Decision 1: Circumventing Recruitment Policies
The Registrar established a Project Team comprised of three external
members and five internal members, all from within the Registry. 227 Later
224
Conversations with non-governmental organizations and diplomats on file with the author;
Women’s Initiatives for Gender Justice, “An Examination of the Registry’s 2016 Budget and
implications of the ReVision Project”, 17 September 2015, p. 11 (‘Examination of the Reg-
istry’s 2016 Budget’).
225
226
See Lynn S. Paine, “Managing for Organizational Integrity”, in Harvard Business Review,
1994; David Lehman and Rangaraj, “Selectivity in Organisational Rule Violations”, in The
Academy of Management Review, 2009, vol. 34, no. 4, pp. 643–657; Newhouse, 2014,
pp. 573–574, see above note 118.
227
Audit Report of ReVision, para. 10, see above note 204.

in the project, the internal members were increased to nine and included
staff from other organs of the Court. 228
According to the Audit Report of ReVision, the mandate of the Pro-
ject Team was to conduct audits of the structures and methods of the Regis-
try. 229 In assessing the decision to establish a project team, the Audit Report
noted that engaging an external audit or hiring a management consulting
firm, rather than the structure selected by the Registrar, would “clearly
have been better suited to a project as ambitious as ReVision whose terms
of reference laid down a wide-ranging scope of objectives”. 230 It also noted
that “it would probably have been at least as expensive as the solution se-
lected”. 231
According to the Audit Report, the Registrar considered several op-
tions and decided upon a hybrid model of a project team comprised of ex-
ternal experts and internal Registry staff. 232 The establishment of the pro-
ject team was part of a deliberative merit-based decision-making process,
and the model chosen was consistent with those utilised elsewhere for re-
organization processes. 233 It may have been a regrettable decision and in-
advisable, as indicated in the Audit Report, 234 but it was justifiable and not
unlawful.
However, in hiring the three external members of the Project Team
between November 2013 and January 2014, the Registrar violated the rules
governing recruitment that require all positions to be made on a competi-
tive basis. It also departed from the appropriate provision in the appendix
to the Staff Regulations, which states that selection panels ‘shall’ be estab-
lished. 235 Rather than complying with these well-established practices, all
of the external members of the project team were appointed directly by the
Registrar without “prior definition of role profiles, no call for applications
and no selection procedure”. 236
228
Ibid.
229
Ibid., para. 24.
230
Ibid., para. 31(b) and 32.
231
Ibid., para. 32.
232
Ibid., paras. 24, 25.
233
Ibid., para. 25.
234
Ibid., para. 32.
235
ICC Staff Regulations, appendix, para. 5, see above note 32.
236

According to the Audit of ReVision, the Registrar’s explanation for

subverting the standard recruitment practice was the “urgency to start the
project” and the time it takes to fulfil the standard recruitment process. 237
As noted in the constrained language of auditors, “[i]n light of the project’s
duration (a year and a half), the urgency invoked must be seen in its proper
perspective. Spending more time on defining role profiles would have
made it possible to construct a more rounded team”. 238 Thus, the motiva-
tion of urgency was not perceived by the Auditors to be a compelling justi-
fication for violating the required recruitment procedure in the appoint-
ments of the three external members.
The implications of this course of action hampered the ReVision pro-
cess. In effect, within weeks of initiating the restructuring project, aspects
of its implementation were in violation of the rules and fell short of the de-
sirable level of transparency necessary in a restructuring process. It appears
that, before ReVision even got off the ground, it had run afoul of the stand-
ards required and critical elements of the restructuring project were in vio-
lation of ICC rules.
In addition to the manner in which the external members were ap-
pointed, it also transpired that these members did not have the experience
or expertise needed to undertake a complex restructuring process. Accord-
ing to the Audit Report on ReVision, none of the external members of the
team had experience in financial management, human resources or audit-
ing, 239 skills highly relevant to undertaking a reorganization process. The
external members also lacked significant prior experience with respect to
undertaking major restructuring programmes. 240 The Team, described by
the Registrar as providing “the crucial recommendations on the basis of
which [he] and the senior Registry management were able to take the nec-
essary decisions”, 241 lacked the expertise required to undertake an effective
and credible restructuring process.
237
Ibid., para. 28.
238
Ibid.
239
Ibid., para. 29.
240
Only one member of the Project Team had previous experience in organizational restructur-
ing, and this was in relation to a relatively small re-organization project within a unit of the
ICTY. Conversations with former ICTY staff members in 2015 on file with the author.
241
Comprehensive Report, Foreword by the Registrar, pp. ix-x, August 2020, see above note
204.

The Audit Report notes, somewhat unconvincingly, that these “short-

comings” were overcome by the skills of the internal members of the pro-
ject team from within the Registry. 242 Although each internal member of
the team possessed genuine expertise relevant to their substantive positions
in the Registry, it is unclear that they had the depth of knowledge and level
of technical expertise required for a restructuring process including specific
and in-depth experience in auditing (of structures, methodologies and
roles), as envisaged by the project.
The fact that the project team did not embody the necessary expertise
or gravitas, understandably raised the concerns of Registry staff whose
posts and livelihoods were in the hands of external experts, appointed
through questionable means, and colleagues who did not have the experien-
tial track record of making the “crucial recommendations” 243 upon which
key decisions were allegedly made. This structure was not reassuring for
staff and placed internal members of the project team in unenviable posi-
tions with their colleagues.
These specific features of the ReVision project do not appear to have
utilised merit-based decision-making processes. This is clarified by the un-
lawfulness of the appointments of the external members and the absence of
sufficient expertise within the project team as a whole. Given the risks in-
volved, it could be considered brazenly irresponsible to fail to ensure that
those involved in designing and implementing ReVision possessed the nec-
essary competencies and expertise to undertake a process directly and indi-
rectly affecting the 600 staff members of the Registry.
If the appointments of the external members were not based on the
recruitment of those with the depth of experience and expertise required to
undertake a complex restructuring project, then what was the basis for their
appointments? The only commonality readily obvious is that all three were
known to the Registrar either on a personal basis or as former colleagues at
the Special Tribunal for Lebanon (‘STL’), where he had previously served
as Registrar before joining the ICC. Some of the external experts also knew
each other as colleagues at the ICTY. Only one of the external experts was
in a senior management position (P-5) at the time of being hired for ReVi-
242
243
Ibid.

sion, another was recruited to the team from a junior post (P-2) at the ICTY,
and the third was in a mid-level management position at the STL. 244
Prior collegial relationships and other alliances may have also played
a role in other key appointments as well, including the recruitment of three
personnel within the Registry on the eve of, or early on in, the ReVision
project. Appointees to positions of the Head of Human Resources, the
Chief of the Legal Advisory Service Section and the Chief of Budget Sec-
tion, 245 were all individuals with whom the Registrar had worked at the
STL or was a fellow civil servant of the ministry of foreign affairs of the
host State. Each of these posts would subsequently feature prominently in
the restructuring process in roles that were instrumental to the project in the
core areas within which the meritocracy of the decision-making appears to
have been most questionable and the reliability of information least con-
vincing. The legal advice, human resource data and budget assumptions
with respect to ReVision are examined in the sub-sections ahead.
It is believed that questions were raised internally at the time of each
of these selections regarding the basis of their appointments in terms of the
prior professional experience and qualifications of the appointees. 246 Con-
cerns were also expressed about perceived anomalies in the recruitment
processes, including the extent to which, or whether, the Registrar had per-
sonally intervened in one or more of these appointments, possibly ignoring
the recommendations of the recruitment panel(s), which may have deemed
a candidate(s) unsuitable for interview.
244
Conversations with former ICC and ICTY staff on file with the author. In terms of State
representation on the team, the three external members were from Bulgaria, the Republic of
Ireland and the Netherlands.
245
The Budget Section was created as a result of the restructuring project. Prior to ReVision,
the functions of budget and finance operated together within one section. It would appear
that the appointment of Chief of Budget Section, whilst the restructuring was still underway
may have subverted the ‘priority candidate’ provision outlined in the Principles and Proce-
dures under which staff, whose posts were abolished, could apply for new positions created
within the Registry as a result of the restructuring, as well as other posts available within the
ICC. The Budget Section was a new section created by ReVision and similarly, the Chief of
Budget Section was a new position emerging from the restructuring project. At the time of
this appointment, the Registry was still undergoing the restructuring process and more than
110 staff were unaware that their posts would ultimately be abolished. This included staff
with potentially relevant financial and budget-related experience. Some of these individuals
may have qualified to apply for the Chief of Budget position but did not have the opportuni-
ty to contest this post because the position was filled before they were made aware that their
own posts were to be abolished.
246
Conversations with Registry staff on file with the author.

Circumventing the legal framework in the appointment of the exter-

nal members of the project team immediately negates the possibility of the
decision-making process embodying any merit. The extent of the prior rela-
tionships of the Registrar with the external members of the team and with
those employed in three positions central to the implementation of the re-
structuring project, as well as the manner in which all of these appoint-
ments were made, provoked legitimate questions by staff. It also inevitably
gave rise to mistrust in the process and of those responsible for the project.
Ultimately, these decisions created significant financial and legal risks for
the ICC.
8.7.2.2. Decision 2: Unlawful Promulgation of the Principles and
Procedures
On 19 August 2014, the Registrar promulgated the Principles and Proce-
dures applicable to Decisions Arising from The ReVision Project (the
“Principles and Procedures’’, or the ‘Principles’). 247 These Principles were
intended to “establish a framework for the implementation of decisions
arising from the restructuring process, so that staff members can be confi-
dent that decisions affecting them are implemented according to a fair,
transparent process and with full respect for their contractual rights”. 248
Half way through the restructuring process, the Principles were amended
and re-disseminated on 13 June 2015, 18 months into the project. 249 On
both occasions, the Registrar promulgated the Principles through the use of
an Information Circular.
The consideration of these issues by the ILOAT, with respect to Re-
Vision, provides clarity on this aspect of the ICC’s legal framework. In its
Judgment No. 3907 related to ReVision, the ILOAT explains that the ICC’s
Presidential Directive ICC/PRESD/G/2003/001 “governs the promulgation
of the ICC’s three types of Administrative Issuances: Presidential Direc-
tives; Administrative Instructions; and Information Circulars”. 250 Accord-
247
ICC, Principles and Procedures Applicable to Decisions Arising from the ReVision Project,
19 August 2014, ICC/INF/2014/011 (‘ICC/INF/2014/011’) (https://www.legal-tools.org/doc/
36d086).
248
Ibid., Article 5.
249
ICC, Principles and Procedures Applicable to Decisions Arising from the ReVision Project,
13 June 2015, ICC/INF/2014/011 Rev.1 (‘ICC/INF/2014/011 Rev.1’) (https://www.legal-
tools.org/doc/d7a314).
250
ILOAT, Judgment No. 3907, para. 6, see above note 126.

ing to the ILOAT, the Registrar’s decision to promulgate the Principles and
Procedures by an Information Circular violated the Presidential Directive,
making the principles and the decisions derived from the application of the
principles “unlawful”:
As the promulgation of the Principles and Procedures by In-
formation Circular was in violation of the Presidential Di-
rective, they were without legal foundation and are, therefore,
unlawful as are the decisions taken pursuant to the Principles
and Procedures. 251
In effect, ReVision in its entirety was found by the ILOAT to be ille-
gal at its very foundations.
According to the same ILOAT judgment, the Principles and Proce-
dures included provisions which effectively changed some of the articles of
the ICC staff regulations and rules. Such significant policy changes are out-
side of the legal scope of an Information Circular. 252 The ICC asserted that
the Principles did not denote a change in the staff rules and regulations and
only applied to the Registry, and not to other ICC staff. 253 The ILOAT “re-
jected” this reasoning, 254 and noted that “a number of provisions within the
Principles and Procedures involve[d] regulatory matters”, 255 including sev-
eral substantive changes to the Staff Regulations. 256 In other ReVision-
related cases, the ILOAT also noted that several of the individual provi-
sions contradicted the ICC Staff Regulations and/or did not meet the stand-
ards of existing ILOAT jurisprudence, 257 including: the extension of ap-
pointments; 258 the enhanced agreed separation package; 259 and the ‘priority
candidate’ provision which did not meet the ICC’s obligation to explore
employment options prior to separation. 260
In addition, the ILOAT found that the changes to the Staff Regula-
tions outlined in the Principles, which were applicable only to decisions
251
Ibid., para. 26.
252
Ibid.
253
254
Ibid., para. 16.
255
Ibid., para. 17.
256
257
Ibid., para. 13.
258
Ibid., para. 18.
259
260

arising from ReVision, unfairly advantaged staff impacted by the restruc-

turing and “would result in unequal treatment not only for staff members
outside the Registry but also for those Registry staff members not affected
by the restructuring”. 261
The complainant in the case associated with Judgment No. 3907
submitted that the Chief of the Registry’s Legal Advisory Services Section
provided the Registrar with an outline of “the risks surrounding the prom-
ulgation of the Principles and Procedures by way of an Information Circu-
lar”, and as such the promulgation of the Principles had not been cleared by
the Section, as required in the Presidential Directive. 262 In response, the
Registry argued that the legal advice provided by the Section supported the
promulgation of the Principles via the Information Circular. 263 Ultimately,
the ILOAT found that “in the absence of the requisite clearance, the Regis-
trar lacked the authority to sign the Information Circular”, 264 and as such
the Principles “were without legal foundation and are, therefore, unlawful
as are the decisions taken pursuant to the Principles and Procedures”. 265
The unlawful promulgation of the Principles through the incorrect
administrative issuance created profound financial, legal, and reputational
risks for the Court, which the Registrar was prepared to take. This decision
abandoned a merit-based decision-making process and failed to meet the
minimum standard of legal compliance, even though the legal requirements
were both knowable and known.
The transparency in the communication of the Principles to Registry
staff was also less than ideal. The Principles and Procedures were adopted
by Registrar on 19 August 2014, eight and a half months after the restruc-
turing process began. 266 As such, the Registry staff most affected by ReVi-
sion were not informed of the detail of the methodology to be employed by
the project including the process of post assessments, work surveys and
detailed functional analysis, the (re)classification process and the implica-
tions of having one’s post abolished until late in the process and just two
months before the first set of posts were terminated in October 2014. The
261
Ibid., para. 24.
262
Ibid., para. 25.
263
Ibid., para. 25.
264
Ibid., para. 25.
265
Ibid., para. 26.
266
ICC/INF/2014/011, see above note 247.

Revised Principles were promulgated on 12 June 2015, three weeks before

the second set of notices were issued to more than 110 staff informing them
that their posts were to be abolished. 267 In addition to the concerns about
the capacity of the project team, communication to staff at a late stage of
the process regarding the methodology to be utilized for the restructuring
and the components of the reclassification phase created further anxiety
and stress for Registry staff.
The Principles and Procedures provided assurance to staff members
that for “any proposal to abolish a position, there would be an underlying
objective basis”. 268 However, according to the same Principles and Proce-
dures, one of the factors to be taken into account by the ‘classification ex-
pert’ in determining whether a substantial change had been made to a posi-
tion and therefore could be abolished in its current form, was a review of
staff “performance appraisal documents” and “mid-term reviews”. 269 It is
difficult to understand why the performance of the current individual in a
post is relevant to assessing the objective role, responsibilities and tasks
associated with that position, in the context of the overall functions of the
Registry. Performance considerations and mid-term reviews are important
and valuable assessments. However, arguably they should not have been
relevant to a restructuring process that claimed to be based on objective
criteria associated with reviewing the roles and tasks of positions.
There is insufficient information available to examine whether or to
what extent decisions to abolish posts were driven by a desire to terminate
the current post-holder for performance or any other reason or were based
on objective assessments of the functions and responsibilities of the posi-
tion. This appears to have been unclear for the External Auditor as well,
whose report notes that if the Registrar had simply wanted to dispense with
a dozen officials, “a targeted operation offering them enhanced separation
indemnities would have been much less costly [than the cost of ReVision]
(and allayed the stress, suffered by at least 120 people)”. 270
267
Comprehensive Report, p. 32, see above note 204. The timeline also indicates that in early
July, all Registry staff members were notified whether or not their post was to be abolished.
268
ICC/INF/2014/011, para. 5, see above note 247; ICC/INF/2014/011 Rev.1, para. 5, see
above note 249.
269
Ibid., para. 25.
270
Audit Report of ReVision, para. 66(a), see above note 204.

8.7.2.3. Decision 3: Lack of Credible Oversight

The Registrar created a Project Board to assist in overseeing the ReVision
project. According to the Principles and Procedures, the role of Project
Board was to “advise and support the Registrar in the evaluation and deci-
sion-making process”. 271 In the Comprehensive Report of the Reorganisa-
tion of the Registry of the ICC (the ‘Comprehensive Report’), the important
role of the Board is described as being designed to “oversee the execution
of the ReVision project and to advise and support the Registrar in the over-
all direction and management of the project”. 272 In addition, the Board “ap-
proved the opening and closing of each phase, verifying that the project
was on track”. 273
The Board included: three external members 274 (a Defence Counsel
representative and two others with experience in an international judicial
institution); the staff through the President of the Staff Union Council; as
well as three internal members who were representatives of the Registry’s
clients, specifically: the ASP; the Presidency; and the Office of the Prose-
cutor. 275
The formation of a Board and the engagement of ‘end-users’ of the
Registry’s services on this Board were reasonable and sound decisions.
However, according to the Audit Report on ReVision, the Registrar ap-
pointed all of the Board members, including the internal members, which
had the effect of “reducing the Project Board’s independence from the Reg-
istry”. 276 On top of this, the Registrar also chaired the Board, 277 whose role
271
ICC/INF/2014/011, para. 7, see above note 247; ICC/INF/2014/011 Rev.1, para. 7, see
above note 249.
272
Comprehensive Report, para. 49, see above note 204. This was reiterated in the Presidency
note on the issues raised relating to the ReVision project, 24 July 2015, para. 1.
273
Ibid.
274
Ibid., para. 50(b) and (d). There were three external members of the Board. Two of these
experts were described in the Comprehensive Report as having leadership experience in in-
ternational judicial institutions. It is known that at least one of these individuals had worked
with the Registrar at the SCSL. Additionally, the third external expert on the Board was a
Defence Counsel representative who was described as having significant experience before
the SCSL as well as the ICTY and the STL. These are all tribunals where the Registrar had
worked, including in the role as Registrar at the STL and SCSL. Some of the concerns with
the Board rotated around the appearance of possible allegiance to and friendships with the
Registrar. This raised questions regarding the ability of the Board to exercise objective eval-
uations of the ReVision project and the decisions of the Registrar.
275
Ibid., para. 50(a) and (c).; Audit Report of ReVision, para. 11, see above note 204.
276
Ibid., para. 22.

involved oversight of the execution of the project including, “monitoring

the work of this [project] team and, in particular, authorising the project to
transition from one phase to the next”. 278
With the Registrar appointing the Board members and chairing the
Board, the structure lacked the appearance of transparency and, therefore,
credibility. The design of the Project Board called into question its ability
to provide genuine, objective scrutiny and oversight of the decisions asso-
ciated with ReVision. With the co-operation of the Board, some of whose
members, especially those external to the Court who may have been una-
ware of the legal violations and the lack of transparency embedded in the
project, the Registrar was able to proceed through each of the restructuring
phases with the ‘legitimacy’ of Board-confirmed decisions.
It is unclear whether the external Board members were provided with
copies of the ICC’s legal framework and other relevant material through
which they could objectively consider and assess the decisions they were
being asked to confirm.
However, it is clear that the senior ICC staff members on the Project
Board were fully aware of the required legal framework. They would also
have been aware of some of the serious concerns about the restructuring
which had been raised internally. As Board members, one could also as-
sume that they participated in discussions about decisions that enabled the
occurrence of impropriety and violations as determined by the ILOAT and
critiqued in this case study. As employees of the ICC, these Board members
possessed a positive obligation to report patterns of anomalies and breaches
of the legal framework, 279 and to exercise loyalty, first and foremost, to the
institution. 280 These obligations are complemented by the standards of con-
duct expected of international civil servants. 281
As revealed in the examination of the above three decisions, several
deviations from a merit-based decision-making process occurred. It is self-
evident that any meritorious qualities are immediately annulled for all deci-
277
Ibid., para. 11.
278
Ibid., para. 10.
279
ICC Anti-Fraud Policy, Presidential Directive, 13 May 2014, ICC/PRESD/G/2014/002,
paras. 4.1-4.5 (https://www.legal-tools.org/doc/a5168a).
280
ICC Staff Regulations, Regulation 1.2(e), see above note 32.
281
UN, Standards of Conduct for the International Civil Service, 2013, paras. 2–5, 13, 20, 23
(‘Standards of Conduct for the International Civil Service’) (https://www.legal-tools.org/
doc/giezn9/).

sions that violate the relevant legal framework. The procedural and legal
requirements were known, well established and available to the Registrar,
his team and the Project Board before, during and after each of the deci-
sions related to ReVision and at each of the six phases of the project.
8.7.3. Exercise of the Registrar’s Authority
In light of the serial breaches in the decision-making processes associated
with ReVision, it is relevant to consider the structure within which the Reg-
istrar functions. Article 43(2) of the Rome Statute states that:
The Registry shall be headed by the Registrar, who shall be
the principal administrative officer of the Court. The Registrar
shall exercise his or her functions under the authority of the
President of the Court.
The implementation of the restructuring project was, therefore, con-
ducted by the Registrar under the authority and oversight of the President.
Due to the conclusion of a presidential term during ReVision, two Presi-
dents were in office for different stages of the restructuring process. 282
They were, therefore, each responsible for the Registrar’s exercise of his
functions in relation to the specific ReVision activities which occurred
whilst they were in office.
The responsibility of the President of the ICC with respect to the ad-
ministration of the Court is underscored in Article 38(3)(a) of the Rome
Statute, which indicates that the President and the First and Second Vice-
Presidents of the Court are responsible for the proper administration of the
Court, with the exception of the Office of the Prosecutor.
On 24 June 2015, five Judges wrote to the Presidency expressing
concerns about the restructuring project, including its legality, cost, the po-
tential liability for the Court, the benefits of the exercise and the impact on
staff morale, amongst other issues. 283 In the letter, the Judges requested
that the project be suspended until these issues could be properly consid-
ered. On 24 July, the Presidency provided written reassurance to the Judges
282
President Song Sang-hyun was in office from 11 March 2009 – 11 March 2015; and Presi-
dent Silvia Fernández de Gurmendi was in office from 11 March 2015 – 11 March 2018.
283
ICC, Marc Perrin de Brichambaut, Sanji Monageng, Geoffrey Henderson, Chile Eboe-Osuji
and Cuno Tarfusser, “Concerns expressed by Judges on the ReVision project and request for
action to be taken”, 24 June 2015. These judges included the Presidents of the three Judicial
Divisions (Appeals, Trial and Pre-Trial); Audit Report of ReVision, para. 38, see above note
204.

in line with earlier material produced by the Registrar for States Parties,
regarding the legality of the process as well as the size and cost of the new
model of the Registry and reiterated the Registry’s claims about the impact
on the staff profile of the restructuring with respect to gender and geo-
graphical representation within the Registry. 284 The Presidency also shared
this communication with civil society networks. It was assumed that this
action was intended to inform and provide reassurance to a range of stake-
holders, including more than 110 staff within the Registry who by that time
had been notified that their posts were to be abolished in the second wave
of the restructuring.
With this endorsement, it was widely accepted and believed that the
process was legal. Despite questions about the legal underpinnings of the
restructuring, the cost and the lack of merit-based decision-making in fun-
damental aspects of the project, ReVision was resoundingly supported by
the Presidency, the senior leadership across the Court, as well as, resolutely
promoted and defended by States Parties. It had the seal of approval from
States Parties and the ICC President. Regardless of the questions and con-
cerns raised during the process, most stakeholders, including Registry staff,
assumed that the process must at least be legally compliant, even if it was
not being managed and implemented in a transparent and competent man-
ner. With the exception of the Registrar and the Chief of LASS, the extent
of the legal risks and violations were likely to have been largely unknown
to almost all other staff members and stakeholders until the issuance of
ILOAT decision 3907 in January 2018.
With recognition that the Registrar exercises his or her functions un-
der the authority of the President, and with presidential responsibility for
the proper administration of the Court, the Presidency held a positive obli-
gation to exercise oversight of the Registrar’s management of the ReVision
project. The mechanisms to do so existed. In addition to regular meetings
and updates between the President/Presidency and Registrar, the President
could have requested an IOM evaluation or investigation of the restructur-
ing project at various stages, or the Presidency could also have invited, in
284
ICC, Presidency note on the issues raised relating to the ReVision project, 24 July 2015,
paras. 4–15, 41-50, p.15; Audit Report of ReVision, para. 38, see above note 204. The Audit
Report of ReVision does not mention or address the Presidency’s note in response to the
judges’ letter, although it does make reference to the concerns raised by the five judges. Ex-
amination of the Registry’s 2016 Budget, 2015, pp. 2, 4, 8, 10, 11, 12, 14, 18, see above note
224.

co-operation with the CBF and/or the Audit Committee, an internal or ex-
ternal audit of the process. Utilizing one or more of these options may have
been a more appropriate response to the specific concerns raised in 2015 by
a number of fellow judges. It is unclear whether the President or Presiden-
cy were aware of the legal jeopardy for the Court regarding the Principles
and Procedures, prior to the ILOAT decision of January 2018. In spite of
the financial, legal and reputational risks, it seems evident that active steps
to ensure the proper administration of the Court were not taken.
8.7.4. Duty of Care and Treatment of Colleagues
States Parties were led to believe by the project team and in particular the
Registrar, that the concerns being raised about ReVision by staff within the
Registry were no more than the complaints and discomfort one would ex-
pect from employees going through a restructuring process. Substantive
concerns from staff were largely dismissed, and those who continued to
raise issues internally were problematized and ostracized. Most diplomats
amongst The Hague-based States Parties were unable to or chose not to
explore the concerns expressed by staff and did not seek verification of the-
se issues from other sources. Staff welfare in relation to the restructuring
process did not appear to be sufficiently or thoroughly considered in the
discussions amongst either internal or external stakeholders. With respect
to the treatment of Registry staff affected by ReVision, ILOAT judgments
to date have determined that the restructuring project amounted to: unequal
treatment for staff in general; 285 that the ICC had an obligation to deal fair-
ly with staff who occupied abolished positions and fell short of what was
required in specific areas; 286 subjected some individuals to specific experi-
ences of unequal treatment; 287 and failed in their duty of care. 288
Substantial concerns about ReVision including questions about the
veracity of the information being provided to the Court and States Parties
were often deflected by the Registrar and the States most closely involved
with the restructuring process. According to the Registrar, “undertaking a
reorganization doesn’t always make you very popular in organisations”. 289
Concerns raised, most of which have been subsequently vindicated by the
285
286
287
Ibid., para. 20.
288
Ibid., para. 21.
289
Video interview with the Robert H. Jackson Center, at 22:11 minutes.

ILOAT and other reviews, were perceived and bluntly filtered by the Regis-
trar through a personal, rather than a professional, lens. Whilst the Regis-
trar’s statement holds some truth in a general sense that restructuring pro-
jects are often inherently unpopular, the concerns raised about ReVision,
and later verified, were not about the popularity of the restructuring process
but rather, they reflected fundamental questions about the integrity of the
process and by implication, the institution.
8.7.5. Internal Oversight System
How did the ICC’s internal control system respond to ReVision? In the fol-
lowing sub-section, the role of three bodies will be sketched.
8.7.5.1. Office of Internal Audit
The prior weakening of the OIA and its proximity to the Registrar in the
absence of a functioning Audit Committee disempowered a key feature of
the Court’s minimalist internal control system. This had a significant im-
pact during the ReVision Project.
According to the Audit Committee, the OIA deviated from its preap-
proved audit plan for 2015 “as a consequence of the Registry’s reorganisa-
tion”. 290 The purpose of the OIA’s audit was to assess whether the ReVision
project plan was robust and in line with best practices in project manage-
ment with respect to the objective, planning, resources and the expected
benefits. It is apparent that undertaking a process audit whilst the restruc-
turing was ongoing would allow the project to incorporate findings and in-
tegrate any adjustments into the remainder of the process. This was a
much-needed safety valve enabling corrective action to be taken, if re-
quired, to ensure that the project was compliant and on track to achieve its
objectives. As with all internal audits, the OIA required the agreement of
the Registrar, as the head of organ, to be able to proceed with its work in
areas under their authority. On this occasion, it is clear from the Audit
Committee Report that the Registrar prevented the OIA from undertaking
an audit of ReVision; thus, it was forced to deviate from its preapproved
plan. The External Audit of ReVision, undertaken in 2016 after the comple-
tion of the project, did not identify this revealing and critical fact. It was
also not included in the Comprehensive Report on ReVision produced by
the Registry.
290
ICC-ASP/15/15, Annex VII, para. 28, see above note 174.

Although primarily the responsibility of the Registrar, the President

could have insisted upon the internal audit of ReVision proceeding, had he
or she been aware that the Registrar had obstructed the OIA from carrying
out its audit of the restructuring process. It is unclear whether the President
was aware of this or inquired, independently, about the possibility of an
internal audit for the project.
In addition, during ReVision, the OIA conducted internal audits, un-
related to the restructuring process, on issues that involved some of the
staff members whose posts had already been earmarked to be abolished. 291
This involved staff members who were still considering the separation
package and/or who were the subject of other forms of ‘harassment’ within
the intimidating environment created by the restructuring. In the context of
the Registry straining under the restructuring process, these audits appeared
to contribute, intentionally or inadvertently, to the hostile and retaliatory
climate that existed within the Registry at that time.
8.7.5.2. Independent Oversight Mechanism
Although it took over a decade to establish the IOM, in short-order its in-
dependence and impartiality were called into question. This was a result of
statements made by the newly appointed head of the IOM regarding the
non-applicability of its mandate to the restructuring project. Within a few
months of taking office in 2015, the then head of the IOM informed a
meeting of all senior managers in the Registry that there were no aspects of
ReVision that would fall within the IOM’s mandate. 292 This statement sur-
prised many of those present at the meeting in light of the range of con-
cerns that had already emerged with respect to the restructuring. It was also
unexpected given the relatively limited period of time in which the new
head of office had been in his position. 293 For some, it seemed premature
for the head of the IOM to have been able to make such an assessment so
quickly and without undertaking even a preliminary analysis of the pro-
ject. 294
The mandate of the IOM is to evaluate, inspect and investigate in or-
der to enhance the efficiency and economy of the Court. ReVision was a
291
Conversations in 2015 with Registry staff and managers, on record with the author.
292
Ibid.
293
Ibid., The Head of Office assumed his duties on 15 October 2015.
294
Ibid.

project focused on efficiencies within the Registry and at least initially on

potential savings, thus squarely within the purview of the IOM.
In addition, according to the IOM’s operational mandate, the ASP
and the Bureau can request the IOM to conduct inspections of Court pro-
cesses as well as evaluations of any programme, project or policy. 295 It was,
therefore, not up to, nor possible for, the IOM to foreclose its potential in-
volvement in an evaluation of the ReVision process given the powers of the
ASP Bureau to request it to do so at any given time.
The IOM announcement to managers within the Registry depleted
staff confidence in the mechanism and raised questions about its independ-
ence. These concerns were raised by civil society representatives to the
CBF who urged the Committee to better resource the IOM, to take action to
safeguard its independence and avert any loss of credibility with respect to
its perceived or actual impartiality. 296 In their view, the ability of the IOM
to conduct its work “without fear or favour” was critical to its efficacy as a
trusted feature of the Court’s oversight framework and as a reliable mecha-
nism of internal accountability for ICC staff and officials. 297
8.7.5.3. Committee on Budget and Finance
Not to be left out, the States Parties subsidiary body, the CBF, also failed to
adequately examine several aspects of ReVision including, process man-
agement, compliance and financial implications as well as its potential im-
pact on the Registry and the reputation of the Court as a whole.
Beyond being unable to avert the regulatory violations of the restruc-
turing project, the CBF enabled the Registrar’s use of Court funds, contra-
dicting the advice of the External Auditor. To offset some of the cost blow-
outs associated with undertaking the ReVision Project, in 2015 the Regis-
trar decided to utilize EUR 3.38 million from the Employee Benefits Lia-
bilities (‘EBL’) Fund without the required prior authorization of the ASP, as
295
ICC-ASP/12/Res.6, paras. 16, 18, see above note 178.
296
Women’s Initiatives for Gender Justice, Presentation to the Committee on Budget and Fi-
nance, pp. 7–8, September 2016.
297
Ibid.. Independent Expert Review, 2020, para. 285, see above note 85:
The IOM does not as yet enjoy the full confidence and trust of all staff. There is a disin-
clination to make complaints freely and willingly about, and to report officially, alleged
impeachable conduct, especially by elected or senior officials. In turn, this makes it
more difficult to assess the real extent of the occurrences of misconduct and misbehav-
iour, and could be a significant factor in the underreporting of reprehensible conduct.

recommended by the External Auditor. 298 When questions were raised

about the utilization of a considerable amount of unauthorized funds, the
CBF provided justification for the use of the EBL Fund for ReVision, 299
thereby ignoring the External Auditor’s advice, subverting the rules and
shielding the Registrar from repercussions regarding his decision.
In the lead up to the fourteenth Session of the ASP in December 2015,
States Parties were preparing to adopt a resolution in which they intended
to express that they “seriously regret” the Registrar’s use of the Fund with-
out the required prior approval of the Assembly. 300 The original draft of the
resolution also included language highlighting the individual responsibility
of the Registrar regarding the use of the funds. During the first meeting
about the resolution, there was significant support for such a statement
amongst the diplomatic corp. However, when States Parties resumed their
negotiations, several diplomats unexpectedly voiced their opposition to the
use of the term “seriously regret” and insisted on the resolution only ex-
pressing “regret”. They were also adamant in arguing for the deletion of
any reference to the individual responsibility of the Registrar. As a result,
any references to the responsibility of the Registrar regarding the use of the
EBL funds were changed to refer in general to the responsibility of the
Registry with respect to its use. 301 According to some of those involved in
this resolution, prior to the resumed negotiations of the text, the Registrar, a
national and former civil servant of the host State, and the Dutch Ministry
of Foreign Affairs, contacted States Parties to request them to diminish the
language in the ASP resolution reprimanding the Registrar. 302
The pressure from the foreign ministry of the host State to soften the
language and drop any reference to the personal responsibility of the Regis-
trar was complicated for States Parties many of whom have valued bilateral
relationships with the Netherlands. Legal advisors and States were con-
cerned about broader implications for their relationships with the Nether-
lands either within the ICC context or in other political spheres including
the European Union, the UN and other international bodies. The host State
298
299
ICC-ASP/14/15, para. 57, see above note 169; ICC, Official Records, Fourteenth Session,
ICC-ASP/14/20, 18-26 November 2015, vol. II, part B.2, para. 12.
300
301
ICC, Official Records, Fourteenth Session, ICC-ASP/14/20, 18-26 November, vol. I, part III,
section C, para. 1.
302

is a highly valued party to the ICC system and its ongoing co-operation
with the Court is essential for the ease of some of its routine functions. It
also provides conditions and courtesies to the Court’s employees and civil
society organizations working on ICC-related issues. Capitals did not want
to strain their relationships and the host State appeared to be highly invest-
ed in assisting the Registrar, as a Dutch national, to deflect or avoid any
negative repercussions. The pressure was effective, and, in the end, the
ASP adopted a resolution addressing this issue in the weakest terms possi-
ble. 303
The protective impulse of States to defend the actions of their citi-
zens working as civil servants within global institutions was foreseen in the
Standards of Conduct of the International Civil Service.
In reaching out to a government to seek their support in order to
“block or reverse [an] unfavourable decision[s]” regarding his status, it is
possible that the Registrar breached the Standards of Conduct of the Inter-
national Civil Service (2013) specifically Article 29. 304 In coming to his
assistance, the host State may have also breached the same article within
the Standards, which require Governments to “safeguard the independence
of the international civil service” and as such, “it is understood that Gov-
ernment representatives and members of legislative bodies will neither ac-
cede to such requests nor intervene in such matters”. 305
The abrogation’s of duty and independence by the OIA, the IOM, the
CBF and the Assembly, are laid bare in light of the ILOAT judgment which
303
ICC-ASP/14/Res.1, para. 2, see above note 172: “Regrets that the Registry did not seek the
formal authorization of the Assembly before resorting to the Employee Benefit Liability
fund and calls for full transparency in any future such transactions and recalls the rules ap-
plying for such transactions”.
304
Standards of Conduct for the International Civil Service, UN Doc. A/RES/67/257, in effect
as of 1 January 2013, Section A.3., para. 29:
It is entirely improper for international civil servants to lobby or seek support from Gov-
ernment representatives or members of legislative organs to obtain advancement either
for themselves or for others or to block or reverse unfavourable decisions regarding their
status. By adhering to the Charter and the constitutions of the organizations of the Unit-
ed Nations system, Governments have undertaken to safeguard the independence of the
international civil service; it is therefore understood that Government representatives
and members of legislative bodies will neither accede to such requests nor intervene in
such matters. The proper method for an international civil servant to address such mat-
ters is through administrative channels; each organization is responsible for providing
these.
305
Ibid.

found the restructuring project to have been “unlawful” in its entirety, 306
the specifics of which could have been identified by a routine internal audit,
an IOM investigation or process evaluation, with more thorough scrutiny
by the Committee on Budget and Finance, and by proper oversight of the
ASP.
The entire internal control system, ill-prepared for the range and
scale of ethical and substantive violations committed during the ReVision
process, faltered and failed.
8.7.6. Misleading Data
When the restructuring project did not produce the outcomes expected and
promised, some of the data was manipulated to make it appear as if the
process had been valid, and the results had been met. This included provid-
ing misleading information to States Parties about: the legality of the pro-
ject; the fulfilment of the Court’s duty of care to staff during the process;
the negative impact on gender and geographical representation as a result
of ReVision; and the size, cost and alleged savings of the new Registry
structure. The following two sub-sections will address the latter aspects of
the misleading data provided to States Parties.
8.7.6.1. Gender and Geographical Representation
Gender and geographical considerations are live issues at the ICC. They
form part of the statutory requirements for the election of Court officials
and, through a complicated formula, each State Party is allocated a certain
number of nationals to professional posts within the Court. These data
points hold great value for the sense of collective ownership and positive
engagement by Member States within the ICC. Individual States and re-
gions are attentive to the levels of representation and under-representation
within the professional profile of the Court.
Through the Comprehensive Report produced after ReVision and a
series of Q&A papers on gender and geographical issues disseminated to
States Parties during the restructuring, the Registry sought to inform and
reframe the emerging results with respect to the abolishment of posts and
the subsequent appointments made to the new positions. This material in-
cluded the provision of misleading information to States Parties in order to
dilute the political impact of the restructuring process when it resulted in
306

fewer women and fewer nationals from African States in leadership and
management positions after ReVision than before the project. The provi-
sion of some of the data presented to States appeared to be intended to ob-
scure and downplay the politically sensitive negative results.
The geographical aspect was particularly delicate given the Africa
region had been the near exclusive focus of the Court’s prosecutorial work
until 2019 with the exception of its investigations in Iraq. Attention to the
regional impact was also heightened because the position of Deputy Regis-
trar (D-1), designated by the Rome Statute, 307 and at that time held by a
national from an African State, had been abolished at the end of 2013 at the
recommendation of the Registrar, in part as a cost-saving measure, in line
with the publicly stated intentions of the Registrar to create savings and
efficiencies. The abolition of this post was the first major change in the
landscape of the Registry.
According to the Comprehensive Report on ReVision, there were
more nationals from African States appointed to professional posts within
the Registry after the restructuring, than before. 308 Reviewing the tables
within the Report on ReVision it is clear that this is due to an alleged in-
crease in the representation of African nationals in the most junior level
professional positions (P-2). 309 This is the only category of professional
posts in which there may have been an increase in the representation of na-
tionals from African States. Unfortunately, the figures in the Report also
misrepresent and reduce the number of nationals of African States in lead-
ership and senior management posts (P-5) before ReVision. 310 The figures
utilised in the Comprehensive Report also do not reflect the first set of
posts abolished as part of the restructuring project in October 2014. In oth-
er words, a false picture was created through the selective and partial use of
data or the omission of relevant information.
Overall, there were fewer nationals from African States Parties in
management and leadership positions after ReVision than before the re-
structuring process. Although the numerical difference in representation at
307
ICC Statute, Article 43(3), see above note 2: “The Registrar and the Deputy Registrar shall
be persons of high moral character, be highly competent and have an excellent knowledge of
and be fluent in at least one of the working languages of the Court”.
308
Comprehensive Report, para. 567, see above note 204.
309
Audit Report of ReVision, para. 106, see above note 204; Examination of the Registry’s
2016 Budget, 2015, pp. 5, 6, 19-30, see above note 224.
310
Ibid.

the senior management level before and after ReVision is relatively small,
the political sensitivities and relational context of these changes were keen-
ly felt by African Member States whose distress and concerns appeared to
be undervalued by the Registrar. This was exacerbated by the series of
questionable human resource figures presented by the Registry and the de-
nials of any adverse impact on the representational profile of African na-
tionals as a result of the ReVision project.
Unlike geographical issues, few States Parties demonstrated any sus-
tained interest in the implication of the restructuring on the representation
of women in management, senior management and leadership positions
within the Registry. There were significant decreases in the number of
women in mid-level management positions (P-4) and a slight decrease in
the number of women in P-5 posts as a result of ReVision. There was also a
missed opportunity to appoint a woman, for the first time, to a head of divi-
sion with the creation of the new External Relations Division. To date, no
women have ever been appointed as a divisional head within the Registry.
These posts continue to be dominated by males from the Western Europe
and Others Region (WEOG). In the aftermath of ReVision, some States
Parties have become animated by concerns about the under-representation
of women in management and leadership positions within the ICC and are
now championing these issues at the Court as well as across a range of
multilateral organizations. 311 Whilst attention to these issues is always im-
portant, the depth of commitment to gender equality is unclear given the
silence of almost all States during the restructuring process even when in-
formed of the negative impact in real time on the representation of women
at mid-level and senior positions. Since the restructuring process, the CBF
has adjusted its approach to this issue by analysing more nuanced data re-
garding the representation of women in professional posts across the Court
and has noted their specific concerns about the need for the Registry in par-
ticular to “narrow the gender gap”. 312 In turn, the Independent Expert Re-
view devoted attention to this issue in their report with the inclusion of
numerous statements and recommendations urging the Court to address the
significant under-representation of women in leadership posts. 313
311
ICC, “ICC hosts launch of International Gender Champions Network’s New ‘Den Haag
Hub’”, press release, 5 February 2019, ICC-CPI-20190205-PRI1437 (https://www.legal-
tools.org/doc/a4a94c/).
312
ICC-ASP/17/5, part F, section 3, paras. 97 and 98, see above note 188.
313
Independent Expert Review, 2020, for example, paras. R15, R88, 138, 212.

The narrative about the gender and geographical issues promoted by

the Registrar and his team, which the CBF, the ASP and the Presidency
were willing to echo, seemed intended to provide political cover for the
Registrar, for the Court as a whole and for diplomats, especially those from
States Parties which genuinely profess a commitment to gender and geo-
graphical diversity and yet had overseen a restructuring process that had
reduced the meaningful representation of both.
8.7.6.2. Determining the Data
The Registry’s misleading figures and narratives about the staff profile fol-
lowing the restructuring was made possible through, a manipulation of the
timeframes selected to determine the staff figures both before and after
ReVision. For example, in the Comprehensive Report of ReVision, the
Registry indicates 30 April 2015 as the date it utilized to count the staff
profile prior to ReVision even though the project was launched 16 months
before this time, on 1 January 2014. 314 By selecting April 2015, it negates
the positions abolished in October 2014 under ReVision and to which the
enhanced separation package applied. This enabled the Registry to produce
misleading figures that downplayed the negative gender and geographical
impact of the restructuring. The Report also indicates the date of 30 June
2016 to assess the staff profile after ReVision, although the project ended
on 31 July 2015.
Arguably, more realistic dates for the staff profile of the Registry be-
fore ReVision would be 31 December 2013, given the restructuring project
officially started on 1 January 2014. Or one might consider 31 July 2014,
the final month before the promulgation of the first set of Principles and
Procedures on 19 August 2014. Both of these dates would provide a rea-
sonable and more accurate assessment of the staff profile of the Registry
prior to the restructuring, inclusive of the first posts abolished in October
2014. The date to assess the staff figures after ReVision could be 30 August
2015, given the project officially ended on 31 July 2015 or alternately, one
could consider 31 December 2015 to bring it into alignment with other ICC
human resource reports and provide a clear two-year period for comparison
between the start and the end of ReVision (31 December 2013–31 Decem-
ber 2015).
314
Comprehensive Report, p. 26, see above note 204.

8.7.6.3. The Cost of ReVision and Its ‘Savings’

An area, which has yet to be fully reviewed, relates to the alleged cost of
the new Registry structure. In particular, whether ReVision adhered to the
envelope of EUR 42,929,500 and the staff level of 560 fixed-term posts set
by the ASP for the restructuring, and generated savings of EUR 443,800, as
claimed by the Registrar, 315 and confirmed by the Presidency. 316 In review-
ing the Registry’s projected budget for 2016, the CBF labelled the alleged
savings contradictory, 317 and described the costs associated with the new
structure as “lacking the necessary consistency, transparency and compara-
bility”. 318
The CBF and the 2016 Audit of the ReVision project, both accepted
that the Registry’s figure for the total cost of the new structure was within
the envelope and acknowledged the savings as reported by the Registry.
The Audit Report also noted that the alleged savings of EUR 443,800 were
quickly absorbed with the increase in staff numbers and other costs within
the budget for 2016, based on the new model of the Registry. 319 The Audit
Report found the savings in staff costs alleged within the 2016 budget to be
“unconvincing”. 320
In its series of 18 “detailed reports” 321 produced on ReVision, the
Registry has never provided information regarding how it arrived at the
cost of the new structure. 322 It would be valuable to conduct a forensic fi-
nancial examination to assess whether States Parties were provided with
reliable information, and whether the costs and alleged savings of the new
structure are verifiable, thereby ensuring that the Registry has a sound basis
for future budget projections. Two aspects worthy of specific scrutiny are:
(a) Whether all of the positions counted in the staff costs for the Registry
budget before ReVision were also counted in the costs of the new
structure. The information about the significant increase in the ICC’s
315
Ibid., para. 136.
316
Audit Report of ReVision, p. 8, see above note 204.
317
ICC-ASP/14/15, fn.11, see above note 169.
318
Ibid., para. 58 and fn. 11.
319
Audit Report of ReVision, para. 127, see above note 204; ICC-ASP/14/15, fn. 11, see above
note 169.
320
Ibid., para. 126.
321
Comprehensive Report, p. 25, see above note 204.
322
Examination of the Registry’s 2016 Budget, p. 11, see above note 224.

2016 budget request based on the new model, compared with the al-
leged savings in the new structure, do not seem strongly aligned. The
challenges in reconciling contrasting budget figures with respect to
ReVision was referred to in the Audit Report as “difficult to ex-
plain”, 323 and that while the increase in staff numbers to adjust to the
new premises was reasonable, the Registry’s explanations justifying
the effectiveness of the restructuring project, “warrant qualifica-
tion”. 324 It is relevant for the integrity of the budget, the verification
of the alleged savings, and the claims of adherence to the financial
envelope determined by States that all of the same positions (contrac-
tors, consultants, advisers, fellows, staff posts and so on) that were
counted before the restructuring, were also included in the headcount
related to the cost of the structure after ReVision. This question re-
mains open and unanswered.
(b) Whether the standard practice utilized by the Registry of budgeting
for each position based on the maximum cost of the post was applied
to the new structure. The practice of budgeting for the ceiling costs
per post ensures that, regardless of who is in the position, the post is
properly and adequately addressed within the budget. For example,
all of the professional posts at the ICC (P1-P5) have 13 steps in the
salary structure. Under the standard budgeting practice, each post
would be budgeted at Step 13 (the highest step) to ensure that the po-
sition is fully budgeted in case of changes in the post and the need to
recruit a new person into the position. If the new person is more ex-
perienced than the previous holder of the post, the ICC is able to
benefit from the additional experience by being able to offer the in-
coming appointee a higher step level than the previous occupant. If
this standard practice was applied to the restructuring, then it has a
sound budget. If not, and if instead the budget for ReVision deviated
from the standard practice and was based on budgeting only for the
actual step level of the incumbent, then the budget has been under-
estimated and misrepresented, and may not be reliable as the basis
for budget projections in the long term. This issue speaks to both the
integrity of the budget as well as the process.
323
324
Ibid., para. 114.

8.7.7. Governance
Despite their governance responsibilities, States Parties were consistently
willing to forgo a critical analysis of the information they were provided as
long as what they were being told about ReVision was compatible with
what they wanted to hear, regardless of how unlikely or implausible it was.
What they wanted to hear was that the new structure would deliver savings
and efficiencies, and that the process was valid and complied with the legal
framework. This narrative was closely adhered to by all Court principals,
as well as States Parties, elected officials, and other stakeholders, with few
exceptions, throughout the entire project.
As time went by and the role of States Parties in the mismanagement
of ReVision began to surface, it was perhaps not in the interest of the States
to probe further.
In reality, it was likely that some of the diplomats, especially those in
small to mid-size embassies, were overworked and overwhelmed by their
duties to simultaneously cover a number of Hague-based multilateral insti-
tutions, including the ICC, the ICTY, the International Court of Justice as
well as the Organisation for the Prohibition of Chemical Weapons. Some
embassies simply did not have the bandwidth to interrogate the voluminous
restructuring information with which they were furnished by the Registrar
and his team. 325 Many States appeared to passively go along with the pro-
cess, whilst others seemed to be disengaged due to competing work priori-
ties. Some may have overly relied on the assessment of the States that were
actively involved in the restructuring process, and most seemed to assume
that the Registrar and his team were competently managing the project, or
at least ensuring that it was legally compliant.
During ReVision, the pressure experienced by individual diplomats
to forgo dissent and to conform to the group narrative was clear and tangi-
ble. Legal advisors of States Parties who raised questions or expressed an
alternative view about the restructuring were sometimes threatened by the
Registrar with being reported to their capitals if they persisted. 326 This was
a powerful disincentive. Diplomats on assignment do not like to be under-
mined to their capital or to have their reputations compromised. Inevitably,
as a result of this pressure, most of the issues were quickly dropped. In ef-
fect, individual diplomats may have been pressured or harangued by the
325
Conversations on file with the author.
326
Ibid.

person whose work in the context of the Court as a whole they were re-
sponsible for overseeing as States Parties. Individual diplomats were reluc-
tant or even afraid to express ideas that contradicted the Registrar and the
other group members (States Parties), especially those whose national and
individual reputations became entwined with the success of this reform
process.
The pressure also went the other way with some Court officials re-
portedly urged by States Parties to be more vocal and visible in their sup-
port for ReVision and the Registrar. 327 As an elected official, a request from
an influential State Party can quickly feel like a requirement.
The Registrar and States Parties were unwilling to consider or dis-
cuss discrepant or unsettling information about ReVision and were aggres-
sive towards discordant critiques about the process. Any data or analysis
that questioned or contradicted the group narrative was dismissed. Those
providing the analysis were treated with suspicion and disdain or, alterna-
tively, accused of threatening the reputation of the project. 328 The Registrar
and personnel in his immediate office who, according to the Comprehen-
sive Report, were responsible for external communication about ReVi-
sion 329 adopted a strategy of personally attacking those who critiqued Re-
Vision as a way of discrediting their analysis. This strategy, a now familiar
tool in the daily political discourse within the US, was not new to the ICC.
But the personalized attacks targeting both internal and external stakehold-
ers was unprecedented and as a tactic, it was effective in deflecting atten-
tion from the facts and the vulnerabilities within the ReVision process, at
least in the short term.
It is reasonable for States Parties to expect civil servants to be candid,
honest and transparent and that States will be provided with reliable infor-
mation upon which they make significant decisions as the governing body.
But when it became clear that some essential information about ReVision
was questionable at best and warranted a more critical evaluation given
what was at stake, States chose to remain with the group narrative and, by
doing so, they knowingly colluded with being deliberately deceived.
This dynamic prevented States Parties from making fully informed
decisions on issues affecting the overall budget of the Court and obstructed
327
Ibid.
328
Ibid.; Comprehensive Report, para. 567, see above note 204.
329
Ibid.

States from being made aware of the serial and serious violations of Court
rules and regulations as well as the breaches of the ICC’s duty of care to its
staff inherent within the restructuring project.
8.7.7.1. Decision-Making Processes
The factors that influence collective and deliberative decision-making pro-
cesses can be subtle.
In the case of ReVision, the chance to undertake institutional reform
of the Registry with 560 staff and with an annual budget of over EUR 60
million was ambitiously seductive for the Registry staff and diplomats most
engaged in the restructuring process. In addition to the genuine intentions
of the project and the legitimacy of the re-organization itself, there ap-
peared to be a significant level of State- and self-interest associated with
the opportunity to undertake an institutional reform process on this scale.
According to Thompson, one of the ways in which corruption of a
public institution occurs, is when interests, irrelevant to its purpose, un-
dermine the effective stewardship of the organization. 330 Personal ambition,
the interests of States Parties, and the preservation of bilateral relationships
are all legitimate and ethically neutral considerations. But each of these
interests was irrelevant to either the objectives of ReVision (to enhance the
efficiency of the Registry and generate savings) or to the mandate of the
ICC. Yet, such considerations appeared to qualify and shape the engage-
ment with and oversight of the project and facilitated the occurrence of a
series of violations, without consequence or accountability. These were in-
fluences that appeared to undermine and compromise the internal control
and oversight procedures of the Court. In the language of Lessig, these
were interests, irrelevant to the objectives of ReVision, that formed an
“economy of influence”, which in this context, weakened the purpose of
the restructuring, the trustworthiness of the institution and possibly the
credibility of the Court.
In hindsight, it was profoundly unwise for States Parties to have pro-
ceeded with a restructuring project in the absence of a functioning and in-
dependent Audit Committee. The Committee was dissolved in 2014 but
had not met since 2012. A credible Committee of external experts may
330
Thompson, 1995, pp. 20–25, see above note 205; Newhouse, pp. 584, 576, fn. 122, see
above note 118; Dennis F. Thompson, “Two Concepts of Corruption”, in Edmond J. Safra
Centre for Ethics Working Papers, no. 16, 1 August 2013.

have been able to provide the objectivity needed in this process and alerted
States Parties and the ASP to anomalies, violations and non-compliance at
an early enough stage of the process for corrective action to have been tak-
en. Whether States Parties would have acted upon this information is un-
known, but had it existed, it would have preserved some integrity for the
institution.
The project suffered from a lack of preparation in advance of the re-
structuring to ensure mechanisms were in place to provide checks and bal-
ances throughout the process. States Parties enabled a system in which
those responsible for ReVision could determine whether an internal audit of
the project could proceed or not, thereby exposing the Court to significant
risk and liability. The Presidency did not take steps to ensure the proper
administration of the Court with an appropriate level of oversight of the
Registrar during this process. When non-compliance with external Audit
recommendations regarding the (mis)use of funds was discovered, the CBF
was prepared to shroud it in justification and States Parties were unwilling
to critique this conduct as improper, let alone address it as a potential viola-
tion of Court rules.
It is evident that the restructuring process did not adhere to merit-
based decision-making processes and that there were serious violations of
the ICC’s legal framework leading to the unfair treatment of staff and the
Court’s failure to meet its duty of care. This was harmful for the staff and
created significant liabilities for the ICC. It is also apparent that the struc-
ture and operating methods of the Project Board did not embody the neces-
sary objectivity and credibility for the process and approved phases of the
project that were inherently flawed. The restructuring suffered from a sig-
nificant lack of transparency in almost all areas including within its deci-
sion-making procedures and in the communication with States Parties with
key aspects of the information provided to States proving to be unreliable
and lacking in veracity. Each one of these areas on their own, meets the
definition of institutional corruption. That corruption is ‘satisfied’ in all of
these aspects, is revealing of the widespread and deep-seated vulnerabili-
ties within the internal and external control systems of the Court. It is also
indicative of a lack of impartiality and critical evaluation in the exercise of
governance by the ASP.
During this period at the Court, institutional dishonesty flourished at
a rapid and voluminous pace. Most alarming was the ease with which this
was accepted by States Parties, the ICC leadership and most independent

stakeholders. The lack of discomfort at the assault on the integrity of the

institution was disconcerting.
To date, ReVision has cost the Court over EUR 7,300,000, inclusive
of the costs associated with undertaking this project (EUR 1,075,500), 331
the separation indemnities paid to staff (EUR 5,311,000 million), 332 along
with the damages awarded by ILOAT to former staff members (EUR
1,000,000) whose posts were abolished. 333 More than five years after ReVi-
sion officially ended, the ICC is still mired in litigation with dozens more
restructuring-related cases still to be resolved and adjudicated for individu-
als whose posts were illegally abolished. 334
The sense of invulnerability for the Registrar and his team was rein-
forced every time a breach of rules, an unlawful act, false information or a
perversion of transparency occurred without consequences for these viola-
tions.
To date, no one has yet been held accountable for ReVision. The
mismanagement and institutional corruption within the process and the
damage to the ICC’s inherent trustworthiness as a public institution have
largely been ignored. In reality, all of the key senior staff whose roles were
central to the process within the Registry and on the Project Board, remain
in their posts without any healthy accountability for the institution. Some
of those involved in the restructuring process have sought higher office,
others have been promoted. According to Dennis Thompson, in cases of
institutional corruption, the actions of individuals implicate the institution
but “it is still individuals who are the agents of institutional corruption and
individuals who should be held accountable for it”. 335
The Registrar stood for re-election for a second term at the end of his
five-year tenure. He ultimately withdrew from the process a month before
the appointment was due to be made, immediately following the election of
a new presidency. 336 This was perhaps not surprising given two-thirds of
the incoming Presidency had been amongst the small group of judges who
331
332
Ibid., para. 95.
333
Judgment No. 3907, see above note 126; ILOAT, L. (No. 3) v. ICC, Judgment No. 3908
(https://www.legal-tools.org/doc/dw2f4u/) and ILOAT, B. v. ICC, Judgment No. 4004
(https://www.legal-tools.org/doc/7d3c02/).
334
ICC-ASP/17/5, paras. 147–153, see above note 188.
335
Thompson, 1995, p. 7, see above note 205.
336
Registrar Herman von Hebel withdrawal letter, 13 March 2018.

had earlier raised a number of concerns about the restructuring including its
legality, efficacy and potential impact on the Court.
It is not yet clear that the ASP and its subsidiary bodies, the Audit
Committee and the CBF, are taking seriously enough the systemic vulnera-
bilities exposed by the restructuring process, the extent of the damage in-
flicted upon the reputation and credibility of the Court, and the urgency
with which it should be undertaking actions to restore trust and confidence
in this publicly funded and correspondingly, publicly accountable interna-
tional institution for justice. It is perhaps most important that the process
begins by restoring the ICC’s confidence and trust in itself.
The failure of ReVision to deliver on its objectives and the financial
costs of the project have perhaps done significantly less harm to the ICC
than the corruption that the management of the process injected into the
heart of the Court and the culture of unethical behaviour that the process
tapped into and accelerated across the ICC as a whole.
For the Court, ReVision was a painful example of the fragility of an
institution untethered from a clear set of ethical values and practices, oper-
ating without the institutional safeguards needed to ensure its integrity. For
States Parties, it was a devastating example of the impact of long-term in-
stitutional neglect, the result of not applying an ethics lens to their over-
sight functions, and emblematic of the limitations of budget-driven govern-
ance.
8.8. Conclusion
At this time in its history, the ICC is ethically discordant with the principles
of the Rome Statute and the global inspiration that gave rise to this revolu-
tionary treaty. Such contrast is the perfect invitation for new models of di-
plomacy and collective leadership to emerge.
The willingness of States Parties to hold themselves and each other
accountable is central to the integration of ethical practices within their
governance and decision-making activities. The continued readiness to
overlook impropriety of elected ICC officials, the sparing of political
blushes, the shielding of senior leaders from accountability processes by
their respective States Parties, and diminishing and denying the harm in-
flicted upon the Court’s institutional integrity, breeds more of the same.
This has led to a crisis of trust and ethical integrity within the institution.
The Independent Expert Review found that the ICC suffers internally from

distrust and a culture of fear. 337 According to their report, concerns about
ethics were identified as an important topic for all stakeholders during their
consultation process and it noted the erosive effect of allegations of poten-
tial ethics violations on the Court’s reputation, credibility and trust. 338 Pro-
fessor Gregory Gordon has described this period in the field of internation-
al justice as “an existential crisis that calls for an ethical catharsis” and pos-
tures that it is this very crisis which “might be what ultimately saves it”. 339
Fortunately, the Court is constantly in the process of becoming the
‘International Criminal Court’ of the Rome Statute, in service to humanity,
preserving the delicate mosaic of peoples united by common bonds, and
providing accountability for the most serious crimes in order to foster
peace and well-being. 340
People in every country of the world, including the 2.5 billion who
are currently citizens of States Parties to the ICC, are increasingly looking
for institutions where conduct matches mission, and where institutional
culture is aligned with the nobility of its mandate. Business, as usual, is no
longer enough.
There is a growing global consciousness emerging that is impressed
more by authenticity than status; seeks credibility, not perfection; and
chooses courage over cynicism. These are the qualities needed in a new era
of multilateral leadership to restore the integrity of the Court, expand pub-
lic trust, and renew pride in this magnificent endeavour.
337
Independent Expert Review, 2020, para. 62, see above note 85.
338
Ibid., para. 254
339
Gregory S. Gordon, “Closing Remarks at the Peace Palace Conference on Integrity in Inter-
national Justice”, CILRAP, 2 December, at 2.34-2.50 minutes (www.cilrap.org/cilrap-film/
181202-gordon-closing/).
340
ICC Rome Statute, Preamble, see above note 2.

9
______
Effective Leadership, Management and

Integrity in International Criminal Investigations
William H. Wiley *
9.1. Introduction
The offices of the prosecutor of the international courts and tribunals 1 es-
tablished since 1993 have shown wildly disparate results with respect to the
number of individuals brought to trial and convicted on some or all charges.
The formative institutions of the modern era – the International Criminal
Tribunals for the former Yugoslavia and for Rwanda (‘ICTY’ and
‘ICTR’) – sentenced 90 and 62 persons, respectively, for the perpetration of
core international crimes. 2 Other bodies have registered lesser numbers of
convictions. For instance, the Special Court for Sierra Leone (‘SCSL’) sen-
tenced nine persons to custodial sentences for international offences, 3 and
the Extraordinary Chambers in the Courts of Cambodia (‘ECCC’) have
registered three convictions. 4 The Special Tribunal for Lebanon (‘STL’) has
yet to issue a single judgement, although the investigative body which gave
rise to the Tribunal commenced its work in 2005. 5 In a similar vein, the
Kosovo Specialist Chambers (‘KSC’) and Specialist Prosecutor’s Office
has not at the time of writing brought its first charge, even though its inves-
*
Dr. William H. Wiley is the founder and Executive Director of the Commission for Interna-
tional Justice and Accountability (CIJA). He started his career in the field of international
criminal investigations with the Canadian war-crimes programme in 1997 and later served at
the International Criminal Tribunal for the former Yugoslavia, International Criminal Tribu-
nal for Rwanda, International Criminal Court, and the Iraqi High Tribunal.
1
The use of the adjective ‘international’ in this context refers to bodies established under
United Nations and international-treaty auspices as well as so-called hybrid institutions
which bring together domestic and international laws and actors.
2
International Residual Mechanism for Criminal Tribunals (‘IRMCT’), “Infographic: ICTY
Facts & Figures” and “The ICTR in Brief” (available on its web site).
3
See the Residual Special Court for Sierra Leone’s web site.
4
Extraordinary Chambers in the Courts of Cambodia, “Who has been prosecuted” (available
on its web site).
5
The United Nations International Independent Investigation Commission (‘UNIIIC’) was
established in April 2005 pursuant to United Nations Security Council resolution 1595.

tigations started in 2011. 6 The International Criminal Court (‘ICC’) has

registered four convictions for the perpetration of core international crimes
since the establishment of its Office of the Prosecutor (‘OTP’) in mid-
2003. 7
The mandates of the international courts and tribunals established
since 1993 are unique and their annual budgets differ, or have differed,
considerably. What is more, the investigative arms of these institutions
have found themselves confronted by quite distinct geographical contexts
presenting highly dissimilar physical risks to deployed personnel. For in-
stance, ICTY investigators faced no meaningful physical risks whilst in the
field, whereas ICC-OTP investigators cannot operate with any significant
effect upon Libyan territory as well as that of a number of other ICC situa-
tion countries. Additionally, the political calculations of domestic actors
frequently generate drag upon investigative efforts; this would go some
distance towards explaining the dearth of prosecutorial output by the STL,
the ECCC and the KSC. For these and other reasons, the number of persons
prosecuted successfully by any given OTP serves as a poor guide to the
quality of any particular institution, its leadership and management. Not-
withstanding these caveats, might the number of successful prosecutions by
all of the international courts and tribunals be tallied with an eye to their
collective performance over the last quarter-century? The following ques-
tion should be asked: is the conviction over 25 years of fewer than 200
perpetrators of core international crimes, involving the expenditure of sev-
eral billion US dollars, suggestive of a highly functioning system of inter-
national investigations and prosecutions?
One thinks not.
What lies at the root of the underperformance of the system of inter-
national criminal justice since 1993? It is most certainly not insufficient
funding; and, whilst one might rightly point to a lack of politico-diplomatic
will in certain instances, in and of itself policy calculation does not explain
6
The Special Investigative Task Force, established in 2011, evolved into the Special Prosecu-
tor’s Office in 2016; see Kosovo Specialist Chambers and Specialist Prosecutor’s Office,
“Special Investigative Task Force” (available on its web site).
7
The four persons convicted at trial, at the time of writing, are Thomas Lubanga Dyilo, Ger-
main Katanga, Ahmad al-Faqi al-Mahdi, and Bosco Ntaganda. Al-Mahdi pleaded guilty; ap-
pellate proceedings remain underway in the case of Ntaganda. This tally does not include
Jean-Pierre Bemba, all of whose convictions for the perpetration of core international crimes
were vacated by an ICC appellate panel.

9. Effective Leadership, Management and
the relative dearth of successful prosecutions. Nor do the physical risks

presented by certain operational areas, not least as public institutions have
always had the option of circumventing physical risk through the enlist-
ment of non-public actors. Insufficiency of successful prosecutions is, first
and foremost, a reflection of the uneven performance of the various inter-
national investigations divisions which are (or were, in the case of the now-
closed ICTR and ICTY) subordinate to the offices of the prosecutor of the
international courts and tribunals. In particular, since 1993, the overall
quality of the leadership and management of the international offices of the
prosecutor and their investigations divisions has frequently fallen short of
the standards required to meet the evidentiary standards necessary for suc-
cessful prosecutions consistently. Put simply, in a number of instances, the
people in charge have not been up to the task. In noting as much, this chap-
ter takes as its starting point the convincing arguments advanced by Morten
Bergsmo regarding the frequent failure of the international community, as
well as the courts and tribunals which it establishes, to foster institutional
cultures built upon professional as well as personal integrity. 8
This chapter draws on personal observations as the author was em-
ployed by the ICTY, the ICTR and the ICC on a continuous basis from
May 2000 to August 2005. It is built around six issues, which are examined
in turn: (1) the roots of international criminal investigative insufficiency; (2)
the crucial distinction between leadership and management in the admin-
istration of international criminal justice; (3) the importance of institutional
loyalty; (4) how failures of discipline serve to undermine the proper func-
tioning of offices of the prosecutor and, most especially, their investiga-
tions divisions; (5) examples of successful as well as insufficient leadership
witnessed at the OTPs of the ICTY, the ICTR and the ICC; and (6) the nec-
essary intersection of strong leadership and professional integrity in the
execution of effective international criminal investigations. Viewed as a
whole, this chapter asserts that a great many poor staffing decisions have
been made by the international community as well as the international of-
fices of the prosecutor themselves, with a negative effect upon the proper
functioning of the investigations divisions, most especially during the
formative phase of the post-1993 era of international courts and tribunals.
More specifically, the inconsistent approach taken towards the appointment
8
No. 93 (2018), Torkel Opsahl Academic EPublisher, Brussels, 2018 (https://www.legal-
tools.org/doc/e550f7).

of individuals to leadership and management positions has had a deleteri-

ous effect upon rank-and-file performance, integrity and, inevitably, inves-
tigative output. Whereas the overall quality of international criminal inves-
tigations has improved over the last 10 years, in a number of respects, the
system of international criminal justice remains burdened by early errors as
well as the lack of consensus, within the institutions and beyond, regarding
their core objectives.
9.2. The Roots of International Criminal Investigative Insufficiency
Have the great and the good, in establishing the various international courts
and tribunals, not least the ICC, believed themselves to be laying the legal
foundations of judicial institutions with little purpose other than the inves-
tigation, prosecution and adjudication of persons suspected of having per-
petrated core international crimes? Conversely, have they seen themselves
as being engaged in processes of social experimentation vis-à-vis conflict-
affected societies as well as the practice of international criminal law?
Notwithstanding their lofty preambles, the statutes which inform the
relevant international bodies suggest that the international courts and tribu-
nals have been envisioned by their politico-diplomatic authors as judicial
institutions with missions not dissimilar to those of domestic justice sys-
tems. However, those tasked by the United Nations, the ICC Assembly of
States Parties (‘ASP’), as well as by smaller groups of States with giving
concrete form to the institutions in question have often treated the building
and operation of the offices of the prosecutor as a social rather than opera-
tional mission – or they have otherwise succumbed to external pressures to
organize their affairs around such an understanding.
Police, prosecutors, judges and other servants of the law who ply
their trades in the domestic realm might bask in the relative luxury of
knowing that there exists a large degree of social consensus regarding the
purpose of their respective labours. Broadly speaking, the actors in domes-
tic criminal justice systems operate on the assumption, largely unspoken,
that their work is designed to protect the citizenry from the threats posed
thereto by persons who conduct themselves outside of the law. Put another
way, domestic actors in the field of criminal justice see themselves as con-
tributing to the protection of the populace through the preservation of the
rule of law.
No such consensus exists in the field of international criminal justice.
It is posited here that, were all of the men and women employed by the ar-

chipelago of international courts and tribunals to be canvassed regarding

the purpose of their labours, a wide range of conflicting or otherwise diffi-
cult-to-reconcile priorities would be identified. Is the purpose of interna-
tional criminal justice to provide a measure of redress for the victims of
war and other forms of widespread or systematic violence? Conversely, is it
the mission of international courts and tribunals simply to incarcerate of-
fenders where the evidence warrants, thereby eradicating demonstrable
threats to the vulnerable through the denial of freedom to the perpetrators
of core international crimes? Or is the aim of international criminal justice
to signal to would-be offenders that there shall be no impunity for those
who violate international criminal and humanitarian law?
Perhaps international criminal justice is designed to serve all of these
ends. What it manifestly cannot do is serve all of these ends in equal meas-
ure, for the budgets of the international courts and tribunals, whilst consid-
erable, are finite. It therefore falls to the leaders of the institutions to estab-
lish priorities within the context of the available resources. Where, though,
should an international chief prosecutor turn for guidance when establish-
ing the said priorities? Quite obviously, the statutes of any given interna-
tional court or tribunal would logically be the first point of reference. In the
event, the lofty statements of purpose set out in the collected statutes are
highly abstract; as such, they necessarily serve as an imperfect guide. Ex-
ternal consultations are of little additional utility in this regard insofar as
there exists in the wider world no international consensus – social or politi-
cal – regarding the purpose or the desirability of international investiga-
tions and prosecutions. This absence of consensus might nonetheless be
seen as a two-edged sword. On the one hand, the lack of agreement has
generally served to create uncertainty within investigative-prosecutorial
leadership cadres about how best to direct their subordinates to common
ends. On the other hand, amorphous statements of purpose and the absence
of wider accord regarding the objectives of international criminal justice
leave considerable scope for leaders, with a clear sense of resolve as well
as moral courage, to shape their missions as they see fit without having to
face well-founded claims that they have violated the letter and spirit of the
relevant statute.
The increasing and distressing tendency towards social experimenta-
tion in the field of international criminal justice is revealed in a number of
practices. First and foremost, recruitment policies prioritizing gender parity
and geographical representation over relevant experience and professional

competence have given rise to all manner of leadership failures, managerial

insufficiency and demonstrations of rank-and-file ineptitude. More specifi-
cally, over the last 25 years, the offices of the prosecutor of international
courts and tribunals have retained an unconscionable number of personnel
who have shown themselves to be unfamiliar with, and unable to conform
to the exacting standards required by investigative and prosecutorial pro-
cesses undertaken in the context of international criminal and humanitarian
law. The objective of creating familiarity with international criminal and
humanitarian law beyond its Western-centric practice through the demo-
graphic engineering of offices of the prosecutor might be characterized as
being admirable in principle. However, to seek to foster a truly global un-
derstanding of the merits of international criminal justice through social
engineering at a pace which undermines the proper development of a given
institution – and by extension, the wider system – constitutes a self-
defeating move by those whose first loyalty ought to be to the principle of
institutional efficiency.
Secondly, the staff-cum-employment rules which govern the relevant
institutions tend to render it difficult for leaders and managers to purge the
institutions of under-performing and otherwise unessential personnel with-
out risk to their own positions. This problem is exacerbated by State offi-
cials, from the developed as well as the developing world, who intervene
directly with international courts and tribunals where one of their nationals
is threatened with dismissal or whose services have otherwise been dis-
pensed with. The ICC-ASP granted the last Registrar of the ICC, Mr. Her-
man von Hebel, what he believed to be a free hand to dismiss underper-
forming personnel as well as others who, oftentimes through no fault of
their own, were holding positions and ranks that were superfluous to the
needs of the Court. In the event, once the sackings started, Mr. von Hebel
began to receive communications from diplomats interceding on behalf of
the individuals effected by the reorganization, whilst still other ASP mem-
bers failed to signal publicly their support for the reorganization which they
had already approved by less-formal means. Ultimately, the complaints by
various States Parties brought to a conclusion Mr. von Hebel’s career at the
Court – and leaders, as well as senior managers working in the field of in-
ternational criminal and humanitarian law, will not have missed this abject
lesson.
Thirdly, pressures placed upon international courts and tribunals by
civil society groups, both directly and through advocacy efforts directed at

the States funding these bodies, have increasingly had the effect of drawing
limited resources away from the core investigative and prosecutorial func-
tions. In turn, the resources have been spent upon relevant, albeit secondary
tasks such as strategic communications, the protection (defined broadly and
hopelessly imprecisely) of victims, who may or may not be witnesses, and
other presumed stakeholders in the judicial process (save suspects and the
accused). Under-explored to date by scholars and commentators, 9 the redi-
rection of resources in this manner from the core functions weighs particu-
larly heavily upon offices of the prosecutor. This phenomenon is particular-
ly in evidence at the ICC, which the uncharitable might assert displays, at
times, a tendency to place more focus upon the needs of victims than on the
evidentiary requirements for a successful prosecution.
Finally, in this context, it will be observed that the professional per-
formance of the managerial and, most importantly, the leadership cadres of
the international courts and tribunals have, since 1993, proved to be uneven.
The shortcomings witnessed over the last quarter-century are inseparable
from the recruitment policies of the institutions which have employed (or
otherwise promoted) men and women to leadership and management posi-
tions. More specifically, the assessment of individuals for senior leadership
and managerial positions have not factored the qualities of institutional
loyalty and moral courage into hiring processes, thereby exacerbating the
problems which arise from the continued employment of unproductive per-
sonnel at lesser ranks as well as the frequent failure of offices of the prose-
cutor to resist external pressures to shift finite resources away from the
core investigative and prosecutorial functions. Managerial and, most espe-
cially, leadership insufficiency encourages institutional rot, too often lead-
ing to the voluntary withdrawal of the most talented personnel to other
places of employment. High rates of staff turnover – which characterized
most especially the ICC-OTP during the suzerainty of chief Prosecutor
Luis Moreno-Ocampo – have a concomitantly negative effect upon institu-
tional memory. In turn, the degradation of the latter has a deleterious im-
pact upon the proper functioning of international offices of the prosecutor,
given the fact that the temporal parameters which frame the opening of a
given investigation and the conclusion of appellate proceedings in the
event of a conviction will span several years.
9
The exception to this rule is Kjersti Lohne, Advocates of Humanity: Human Rights NGOs in
International Criminal Justice, Ph.D. dissertation, Department of Criminology and Sociolo-
gy of Law, University of Oslo, 2015.

As was noted at the outset of this chapter, Morten Bergsmo has dis-
tinguished himself in recent years as the most forceful advocate for the cre-
ation of a culture of integrity within the system of international criminal
justice. Whilst it may be tempting for some to see his demands for upright-
ness and high moral character as nothing more than a rejoinder to the ethi-
cal lapses of Moreno-Ocampo, to do so would be to misconstrue the argu-
ments advanced by Bergsmo as well as the pressing need for new ap-
proaches to personnel matters within the existing institutions charged with
the application of international criminal and humanitarian law. It is the
view taken here that, notwithstanding improvements witnessed over the
last 10 years, there remains an urgent requirement for a root-and-branch
reform of the flawed approach to leadership and management, which has
been too often in evidence in the system of international criminal justice.
Until such reforms are made, the overall prosecutorial record of the interna-
tional courts and tribunals shall remain at levels incommensurate with their
financial expenditures, thereby serving to call the entire system of interna-
tional criminal justice into disrepute.
9.3. Leadership and Management in International Courts and
Tribunals
Many of the problems plaguing the system of international criminal justice
and the associated offices of the prosecutor can be traced to insufficient
institutional leadership and management. As has been noted already, this
state of affairs owes a great deal to the manner in which persons are ap-
pointed to positions of significant responsibility. Unsatisfactory leadership
and management also reflect the fact that the distinction between leadership
and management is poorly understood by those employed by international
courts and tribunals, not least the very persons holding leadership and
management appointments.
There exists a dizzying quantity of books, audio guides, seminars and
the like which are designed to create effective leaders as well as managers
in the world of business; these materials are mind-numbing, at least for
those disinterested in matters of commerce. Highly professional military
forces have their own approach to leadership and management, built re-
spectively around the distinction between the officer and non-
commissioned officer ranks, and the unique training regimens of each pro-
fessional stream. In contrast, treatises which concern themselves with the
practice of law are rarely, if ever, coupled with panegyrics on the im-

portance of effective leadership and management. Omissions of this nature

are understandable to the extent that law is perceived by its practitioners to
be, and frequently is, an individual pursuit, even where a lawyer practises
within a large private firm or a public prosecutor’s office. Be that as it may,
it is the culture of the practice of law which most influences international
criminal courts and tribunals; perhaps as a consequence, the senior most
positions in these institutions – president, chief prosecutor and registrar –
are by design occupied by men and women drawn from the ranks of law-
yers and judges. 10 In practice, this approach to the filling of senior posi-
tions within the system of international criminal justice has seen the ap-
pointment of a great many leaders and managers with an understanding of
law – though not necessarily international criminal and humanitarian law –
who rarely grasp the fundamentals of leadership, management and the dis-
tinction betwixt the two.
What, then, is the difference between leadership and management?
9.3.1. Leadership
The hallmark of effective leadership in an international criminal court or
tribunal is – or ought to be – a capacity for long-term thinking which is
woven around a clearly-defined vision which the leader is able to impart to
his or her subordinates in terms which are understandable to the latter in
the context of their respective professional functions. For this reason, lead-
ers need to be effective communicators, that is, to be skilled at selling their
vision on an ongoing basis to their subordinates as well as to external part-
ners and stakeholders; in the field of international criminal justice, the
gamut of stakeholders runs from international human rights organizations,
through the United Nations Security Council, to key States and (in the case
of the ICC) the ASP.
To ensure the effective implementation of the vision, a leader in the
field of international criminal justice needs to be prepared to take risks. For
the men and women leading international institutions, or component parts
thereof such as the offices of the prosecutor, hazards present themselves
where discipline must be imposed in order to bring recalcitrant and under-
performing subordinates into line. The case of Mr. von Hebel, cited above,
10
As far as this author is aware, the only non-practitioner of law (that is, neither a licensed
lawyer nor a judge) to have held a senior most leadership position in the international sys-
tem of criminal justice was Mr. Robin Vincent, a brilliant court administrator from England
who served as Registrar of the SCSL and, later, the STL.

is instructive insofar as an example was made of this individual by various

stakeholders when he resorted to mass redundancies in an effort to restore
order to an unruly arm of the ICC which he inherited from his predecessors.
Stakeholders – both real and imagined – pose a genuine threat to leaders in
the field of international criminal law. This is particularly the case where
States, acting individually or in concert with one another, to say nothing of
civil society groups, seek to push offices of the prosecutor, most especially,
in directions which are inconsistent with the vision of the leader and, or in
the alternative, the effective functioning of that part of the institution for
which the leader is responsible. By way of example, the United States and
the United Kingdom engineered the removal of Ms. Carla Del Ponte from
her post as chief Prosecutor of the ICTR when she refused to cease pursu-
ing the investigation of core international crimes allegedly perpetrated dur-
ing 1994 by Rwandan President Paul Kagame and his subordinate officers.
Identifying and responding effectively to risk demands, above and
beyond all else, the exercise of moral courage. The latter might be defined
as preparedness to place the interests of the institution as well as its mission
before those of any given individual, including the leader him- or herself. It
does not follow from the requirement for moral courage that the effective
leader should be inflexible. On the contrary, the effective leader must stand
ready to acknowledge where the vision has become unsustainable, in whole
or more likely in part, owing to external factors which the leader is unable
to control, for instance, the deterioration of the politico-military situation in
a given operational area or an unanticipated paucity of financial resources.
Returning for a moment to the investigation of Mr. Kagame et al., Ms. Del
Ponte might well have continued to pursue this course of action in her ca-
pacity as ICTR chief Prosecutor had she done so without broadcasting her
intentions and, had a sufficiency of evidence for one or more indictments
come to light, presented the opposition to this undertaking with a fait ac-
compli in the form of unsealed indictments. In so doing, she could have
continued to exercise her considerable moral courage whilst retaining the
position of chief Prosecutor of the ICTR.
9.3.2. Management
Leaders are not managers; the functions of leaders and managers are, in
most respects, distinct. Managers are responsible for ensuring, at the work-
ing level, the execution of the vision of the leader, generally in accordance
with concrete objectives – for instance, effective case-building and prose-

cutions – set out by the leader and agreed to by his or her managers. Co-
ordination between leaders and managers to this end is of the utmost im-
portance; it is correspondingly crucial that the leader ensure that his or her
time not be absorbed disproportionately by dealings with external stake-
holders. The leader who has insufficient contact with his or her subordi-
nates will, invariably, exercise poor command and control over the institu-
tion which he or she leads. As such, the leader needs to communicate regu-
larly with subordinate leaders and managers, not least to ensure the execu-
tion of the vision in accordance with the goals which afford concrete shape
to that vision. Beyond such co-ordination efforts, competent managers
should be free to act with a certain autonomy, that is, to be free from micro-
management emanating from the leadership level. In large institutions,
where the leaders and managers know their jobs and are committed to the
successful execution of the agreed goals, it is incumbent upon managers to
report only that such-and-such goals have been accomplished within estab-
lished temporal parameters or, where the latter is proving difficult, to re-
quest further direction. In the execution of the goals assigned to them,
managers may resort to innovative methods which are consistent with the
vision of the leader and, in the case of an investigative body, consistent
with any relevant procedural law. In this respect, innovation is a hallmark
of creative leadership as well as capable management.
9.3.3. OTP Leaders, Managers and Followers
It might logically be asked at this juncture what positions in an internation-
al office of the prosecutor are held by leaders and which roles are assumed
by managers.
The chief prosecutor in any given office of the prosecutor is indis-
putably a leader, as is his or her deputy chief prosecutor. The functionaries
who surround these individuals in the immediate office of a chief prosecu-
tor are neither managers nor leaders, though persons so employed do on
occasion come to the erroneous conclusion that their proximity to the lead-
ership lends them their own measure of executive authority. 11 Where mis-
11
A long-ago spokesperson for chief Prosecutor Carla Del Ponte, who was situated in the im-
mediate Office of the Prosecutor, was perceived by some within the OTP of harbouring such
delusions. In 2003, the author of this chapter was told by his senior trial attorney to embark
on a mission to Montenegro to speak to a valuable (in the view of the spokesperson) source.
When this author protested that any such mission was likely to constitute a waste of time
and money, it was explained to him that the direction had come from the said spokesperson

conceptions of this nature appear in evidence, the failure is that of the lead-
er(s) rather than that of delusional subordinates, most especially where
leaders use relatively inexperienced staff in their immediate office to give
direction to senior managers. Office of the prosecutor leaders (that is, chief
and deputy prosecutors) need to interact directly with their senior managers,
that is, their chiefs of appeals, prosecutions 12 and investigations. Each of
these senior managers will have sub-managers, most notably the senior
prosecutors (in the case of a chief of prosecutions) and investigative team
leaders (in the case of a chief of investigations). 13 These sub-managers
have purely management functions. The same might be said of the senior
managers, although the latter may, at their discretion and in agreement with
the leadership cadre, take on certain of the characteristics of the leader, for
instance, where they share with the leader responsibility for the communi-
cation of the institutional vision to subordinate ranks. All other personnel
employed by an office of the prosecutor are effectively followers insofar as
their primary task is to conform to the institutional vision by contributing,
in accordance with their function, to the successful execution of the con-
crete goals communicated to them by their respective managers and sub-
managers.
9.4. Institutional Loyalty
Capable leadership and management alone will not ensure the success of an
international criminal court or tribunal and, most especially, its office of the
prosecutor; there is an additional requirement for institutional loyalty
which weighs upon every leader, manager and follower. Indeed, the effec-
tiveness of any given court or tribunal will run parallel to the degree of in-
stitutional loyalty which is in evidence throughout the ranks of those em-
ployed therein. The fostering of a culture of institutional loyalty, not least
and could not, therefore, easily be challenged. It was not; and, as expected, the mission
proved to be pointless.
12
At the ICC-OTP, what was known as the Chief of Prosecutions in the ad hoc Tribunals is
named the Prosecutions Coordinator.
13
The chief of investigations at the ICC-OTP has a deputy who carries the title Investigations
Coordinator. This arrangement would appear to work well, not least as the position has been
held, since its creation, by a series of capable incumbents. At the ICTY-OTP, the equivalent
position was known as Investigations Commander, there being four such posts when the au-
thor arrived at the OTP in 2000. Ms. Del Ponte ordered the posts to be abolished in 2001 on
the grounds that they were superfluous to requirements although the incumbents ultimately
retained their positions, albeit without substantial authority over investigative matters.

by example, is one of the greatest challenges facing leaders in the field of

international criminal justice because (as noted earlier in this chapter) the
practice of domestic law, which influences in a frequently deleterious man-
ner the practice of international criminal law, is generally a largely individ-
ual or small-team pursuit. In contrast, successful international prosecutions
and, more so, the investigative processes which lead to convictions, are
built upon the work of oftentimes sizeable, interdisciplinary teams operat-
ing transnationally.
The requirement for institutional loyalty in the pursuit of internation-
al criminal justice can be identified in a number of legal instruments, regu-
lations and rules. Admittedly, the term institutional loyalty per se does not
appear in the collected statutes of the international courts and tribunals.
However, a requirement for institutional loyalty can be inferred from cer-
tain of their provisions. For instance, at Article 44(2), the Rome Statute di-
rects that the “Prosecutor and Registrar shall ensure the highest standards
of competency, efficiency and integrity” of the Court staff. Article 36(3) (a)
requires of judges “high moral character, impartiality and integrity”. Like-
wise, Article 42(3) demands that the chief and Deputy Prosecutors be of
“high moral character”. Furthermore, the Rome Statute indicates at various
points that the judges and chief Prosecutor should act independently – pre-
sumably from one another as well as external actors. For its part, the Stat-
ute of the ICTY states in Article 14 that the judges of that tribunal should
be “of high moral character, impartiality and integrity”. Whereas a similar
demand is not imposed upon the ICTY chief Prosecutor, Article 16 states
that he or she should “act independently as a separate organ of the Interna-
tional Tribunal” and not “seek or receive instructions from any Govern-
ment or from any other source”. Like provisions can be found in the Statute
of the ICTR. The requirement that judges and prosecutors be of high moral
character and independent in the execution of their professional duties is
found in, amongst other statutes, those of the STL, 14 the SCSL 15 and the
ECCC. 16
14
Statute of the Special Tribunal for Lebanon, 30 May 2007, Articles 9(1), 11(2) and 11(3)
(https://legal-tools.org/doc/da0bbb).
15
Statute for the Special Court for Sierra Leone, 29 July 2000, Articles 12(1), 13(1), 15(1) and
15(3) (https://legal-tools.org/doc/4768bc).
16
Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as
promulgated on 27 October 2004, Articles 10, 19 and 25. Interestingly, the Statute of the
ECCC requires, at Article 31, that the Chief of Administration should likewise be of “high
moral character and integrity”.

It will be noted additionally that personnel employed by international

courts and tribunals operating under United Nations guidelines – which
constitutes the majority of the international courts and tribunals established
since 1993 – are bound by the United Nations Staff Regulations and Rules.
The latter set out clearly at various junctures that the “international civil
servant” shall conduct his- or herself with “integrity, independence and im-
partiality”. 17 It is here, in the said Regulations and Rules, that the require-
ment for integrity is brought together with the concept of institutional loy-
alty. In particular, at Regulation 1.2(e), staff members “pledge themselves
to discharge their functions and regulate their conduct with the interests of
the Organization only in view. Loyalty to the aims, principles and purposes
of the United Nations […] is a fundamental obligation of all staff members
by virtue of their status as international civil servants”. What is more, the
requirement for institutional loyalty is set out in a written declaration which
every staff member is required to sign upon retention by any and all of the
myriad United Nations bodies. 18
The United Nations Staff Regulations and Rules, cited above, offer a
succinct definition of institutional loyalty whilst making it clear, at least
implicitly, that institutional loyalty is something quite distinct from loyalty
to one’s self. The insufficiency of institutional loyalty in the international
courts and tribunals, including their offices of the prosecutor, reflects the
cultural influence of domestic legal practice (as has been noted already)
along with the frequent failure of leaders within the relevant institutions to
be seen to embody as well as demand institutional loyalty of all subordi-
nate personnel, irrespective of rank. However, it does not follow from the
requirement for institutional loyalty that individuals should not be free to
pursue personal objectives such as promotion and professional develop-
ment. Institutional loyalty and the pursuit of professional advancement by
the individual might co-exist in a complementary manner. Such is particu-
17
Staff Regulations and Rules of the United Nations, 1 January 2018, ST/SGB/2018/1, Regu-
lation 1.2.
18
Ibid., Regulation 1.1:
I solemnly declare and promise to exercise in all loyalty, discretion and conscience the
functions entrusted to me as an international civil servant of the United Nations, to dis-
charge these functions and regulate my conduct with the interests of the United Nations
only in view, and not to seek or accept instructions in regard to the performance of my
duties from any Government or other source external to the Organization. I also solemn-
ly declare and promise to respect the obligations incumbent upon me as set out in the
Staff Regulations and Rules.

larly the case where the leadership of an institution demands institutional –

as opposed to personal – loyalty of all subordinates whilst fostering an or-
ganizational culture which entreats with personnel on an individual basis,
that is, with an eye to the proper execution of professional functions whilst
recognizing the inherent desire of most professionals for recognition as
well as career advancement. Where individual staff members are regarded
from on high as no more than cogs in a mechanical wheel, they will tend to
conform to a minimal standard of performance – or worse, where a flawed
approach to the leadership and management of subordinate personnel is
coupled with disciplinary procedures which are rarely enforced.
9.5. Failures of Discipline and Integrity at the ICTR, the ICTY and
the ICC
The purpose of this chapter is not to recount in an exhaustive manner the
disciplinary failures which have been too often in evidence in international
offices of the prosecutor. However, a few examples of disciplinary failings
dating from the formative years of the ICTR and the ICTY are set out in
order to reinforce the broader argument – without, it is hoped, creating the
impression that the majority of personnel employed by these bodies, during
their youth and later, acquitted themselves in a dishonourable manner. In
turn, the altogether better situation at the ICC-OTP – and some of the rea-
sons therefore – shall be examined.
9.5.1. ICTR
At the ICTR-OTP, within which this author was employed as an investiga-
tor in Kigali, Rwanda during 2001 and 2002, all manner of grift – generally
petty and sometimes more egregious – was in evidence. For instance, this
author recalls with clarity his investigations team leader arriving before his
desk one morning to collect monies to make good on this author’s personal
use of a United Nations vehicle; such use was permitted by the ICTR in
exchange for a small, per-kilometre fee. As the present author had long be-
fore purchased his own car, and correspondingly did not use United Na-
tions vehicles for personal business, he had no idea why he was being
asked to pay what was, in fact, a trifling sum in relation to his income. As it
turned out, another investigator – who had served in an exceedingly senior
position in his national police force – had been entering this author’s name
into vehicle logs against what was, in fact, the personal vehicle usage of the
forger. Other investigators were in the habit of returning nightly to sleep in

their own homes in Kigali when they were supposed to be working in out-
lying areas whilst pocketing the daily subsistence allowance (‘DSA’) paid
by the United Nations for meals and accommodation. Although ultimately
petty in nature, conduct of this nature constituted fraud in the strict sense –
and in this context, it is worth recalling that the offenders of these and other
indiscretions were criminal investigators employed by a law-enforcement
body.
A further problem at the ICTR-OTP during its early years was that a
great many of the investigators had a better grasp of the various privileges
enjoyed by United Nations staff – in particular, the familial benefits to
which those with dependent spouses and children were entitled – than they
did of the case-files to which they had been assigned. Or such was the view
formed by this author, who was on occasion called upon by fellow team
members to interpret the relevant (to the latter) United Nations rules on the
grounds he had studied law. Protestations by de facto counsel that he had
studied international criminal and humanitarian law, not whatever law in-
formed the United Nations rules, with which in any event he had no fiduci-
ary interest as he had no dependents, fell upon deaf ears.
Far more serious offences against the integrity and proper function-
ing of the ICTR-OTP were perpetrated during the early life of that institu-
tion by the Deputy Prosecutor, Mr. Bernard Muna, who was likewise based
in Kigali. He would arrive daily at the Investigations Division headquarters,
seated in the back of a white Mercedes sedan which featured a small UN
flag affixed to the bonnet. Upon exiting his vehicle at the main door of the
building, whatever staff found themselves in the proximity of his arrival
would engage in great displays of bowing and scraping as Mr. Muna made
his way into the building and towards his office. The charitable might as-
cribe the waves of genuflection to social mores. A less generous interpreta-
tion of the grovelling would hold that Mr. Muna had created the impression
in the minds of a great many of the personnel in the Kigali office that they
served the United Nations only at his pleasure. Indeed, under the noses of
chief Prosecutors Louise Arbour and, in turn, Carla Del Ponte, Mr. Muna
had built an impressive patronage network which encompassed much of
the Investigations Division management as well as its rank-and-file. No
suggestion is made here that Mr. Muna realized fiduciary benefit from this
arrangement, which is to observe that the purpose of the structure was un-
clear. What is certain is that its effect was to control tightly the hiring of

investigators recruited from African States as well as all decisions regard-

ing internal promotion within the Investigations Division.
Mr. Muna was eventually sacked by Ms. Del Ponte, the latter having
summoned him to the seat of the Tribunal (that is, Arusha) for this purpose,
evidently without having provided Mr. Muna with any inkling of the fate
which awaited him; his firing was observed, with considerable satisfaction,
by several ICTR-OTP personnel. 19 In the event, the damage wrought by Mr.
Muna was not undone by his removal from his leadership post to the extent
that the African members of his patronage network remained in their posi-
tions. Most (and some would suggest that all) of these men – at that time,
there were very few female investigators at the ICTR – were unsuited to
the requirements of international criminal investigations. If nothing else,
the overall work ethic of the Investigations Division remained appallingly
poor even following the demise of Mr. Muna, presumably because there
was no evident disincentive arising, in the way of disciplinary action,
where an investigator failed to perform to minimal professional standards.
9.5.2. ICTY
The level of professionalism witnessed by this author at the ICTY Investi-
gations Division during 2000–2001 and 2002–2003 was altogether better
than that seen at the ICTR; the overall situation was, however, far from
ideal.
Whilst outright grift was not in evidence at the ICTY-OTP Investiga-
tions Division, until the Investigations Division leadership was restructured
in 2001, travel budgets were put under constant pressure by unnecessary –
and unnecessarily lengthy – investigative missions. In the aforementioned
year, Ms. Del Ponte sacked the Chief of Investigations, an Australian police
officer, and concomitantly neutered the so-called investigations command-
ers, who sat metaphorically between the Chief of Investigations and the
leaders of the nine investigative teams. The Chief of Investigations was
replaced by a French investigative judge, Mr. Patrick Lopes-Terres, who
was evidently instructed by Ms. Del Ponte to get (amongst other things) the
travel budget under control. More than one investigator was soon heard
moaning at a popular Investigations Division watering hole about the dis-
appearance of what might be termed the margin on DSA payments, 20 that is,
19
Or so this author was informed immediately after the fact by one of the persons present.
20
The United Nations paid a fixed daily amount for accommodation, meals and incidentals for
travel, in accordance with the relevant costs of temporary living at a given location; this ar-

the monies left over after one had met the actual cost of room and board
whilst on mission. Plainly, a number of investigators had grown accus-
tomed to supplementing their familial budgets by this means, which in
fairness was not formally contrary to the applicable rules. It will be recalled
nonetheless that these same rules afforded well-paid, lightly-taxed interna-
tional public servants with all manner of education and housing grants with
which to support dependent family members.
More troubling than needless mission travel was the practice, which
was occasionally in evidence until the aforementioned reorganization of the
Investigations Division, of exploiting the differential between the rates of
DSA and mission subsistence allowance (‘MSA’). DSA was paid for short-
er missions, that is, for periods of travel of up to 30 continuous days. MSA
was meant to cover lengthy deployments; it was paid at a lower rate on the
assumption that long deployments in a fixed location would reduce ac-
commodation costs markedly insofar as those so deployed could make
longer-term housing arrangements whilst at the same time facilitating the
preparation of one’s own meals. The trick within the ICTY Investigations
Division would see personnel deploying away from headquarters for tem-
poral periods close to, though not exceeding the point at which DSA would
become MSA. To avoid financial loss arising from the movement from
DSA to MSA rates, a brief sojourn to The Hague would then be taken be-
fore DSA became MSA with, in turn, redeployment to the same location.
Proceeding in this manner, DSA rates would be paid for lengthy, albeit not
strictly continuous absences from The Hague.
Until the reorganization of the ICTY Investigations Division effected
by Ms. Del Ponte, the more serious problem bedevilling the OTP was the
tendency of Investigations Division managers to facilitate the hiring of
their erstwhile colleagues in the domestic realm to rank-and-file investiga-
tor positions, without having undertaken a sufficient assessment of the suit-
ability of each individual for the investigation of core international crimes.
In this manner, the Investigations Division approach to recruitment to the
rangement was termed the daily subsistence allowance (or DSA, as indicated above). The
production of receipts, beyond proof of presence in the given location, was not required. The
DSA rates were very generous, particularly where the traveller was prepared to eschew tra-
ditional hotels for privately-hired accommodation; and, by the time this author arrived at the
ICTY in 2000, a vast network of private accommodation options had been identified in the
cities to which ICTY personnel travelled habitually (for instance, Sarajevo, Zagreb and later
Belgrade, after the fall from power of Slobodan Milošević).

follower ranks, in a period of rapid OTP growth, served to reinforce the

professional shortcomings of the Division, which were ultimately rooted in
the employment at the start of a good many police officers whose investi-
gative specialization lay in fields which did not translate readily into the
building of international criminal case-files. The equivalent approach, in
the hiring of trial counsel, would have seen the retention of non-litigators
specializing in the fields of, say, intellectual property and contract law.
The problems created by the manner in which investigators were re-
cruited to the OTP were compounded considerably by Investigations Divi-
sion promotion practices, the tendency being to elevate internal candidates
to management positions as opposed to seeking ostensible talent from out-
side the ICTY. Whereas certain of the investigative team leads at the ICTY-
OTP were professionally suited to overseeing complex criminal investiga-
tions rooted in international criminal and humanitarian law – just as there
were highly-competent, rank-and-file investigators – it is arguable that
most of the managers retained were not ideally suited to the sort of investi-
gations which the ICTY-OTP was mandated to execute. This is not to sug-
gest that the vast majority of Investigations Division managers were not
highly engaging in a social context. And indeed, ICTY Investigations Divi-
sion promotion practices suggested strongly to a great many keen observers
within the OTP that social adroitness – ‘clubability’, if one will – was pri-
oritized over professional competence in the selection of individuals for
management positions. In the event, just as the patronage network estab-
lished by Mr. Muna survived the sacking of its patron, all of the investiga-
tive managers at the ICTY outlived the removal of the Chief of Investiga-
tions. 21 Instead of a comprehensive house-clearing, the problems arising
from poor Investigations Division recruitment and promotion practices at
the ad hoc Tribunals were resolved – to the extent that they were – by the
appointment of senior trial lawyers to manage investigations from their
formative stages. This change, along with a number of related reforms or-
dered by Ms. Del Ponte, shall be discussed at more length, below.
21
It would be wholly false to assert that the Chief of Investigations oversaw patronage ar-
rangements of the sort facilitated by Mr. Muna. The former is an honourable man whose
professional capabilities were evidently deemed by Ms. Del Ponte to be incommensurate
with his appointment as Chief of Investigations.

9.5.3. ICC
When this author served with the Investigations Division at the ICC during
its formative period (2003–2005), rank-and-file self-discipline, as well as
the quality of the Investigations Division leadership and management, were
of a high order. During the said period, the ICC had two Deputy Prosecu-
tors, one of whom, Dr. Serge Brammertz, oversaw the Investigations Divi-
sion. In this role, Dr. Brammertz was assisted by a capable Chief of Inves-
tigations to whom the investigative team leaders reported. The latter over-
saw the Democratic Republic of the Congo (‘DRC’) and Uganda (that is,
Lord’s Resistance Army) investigations; later, a Darfur team was estab-
lished to deal with that situation. Presumably by design, given widespread
knowledge in the field of international criminal and humanitarian law of
the managerial deficiencies plaguing the investigations divisions of the ad
hoc Tribunals, neither Dr. Brammertz nor any of the ICC investigative
managers were recruited from or had any experience of the system of inter-
national criminal justice prior to joining the ICC-OTP. Perhaps for this rea-
son, the initial ICC Investigations Division arrangements worked well, ow-
ing to the quality of the leadership, management, and the rank-and-file per-
sonnel, many of the latter having been hand-picked from the ICTY-OTP. Or
rather, the leadership and management structure of the ICC Investigations
Division worked well until such time as Mr. Moreno-Ocampo – who had
no discernible grasp of either investigations or international criminal and
humanitarian law – began to meddle in the day-to-day investigative work,
roughly one year into his tenure.
The brazen manipulation of travel allowances and the like which
characterized the conduct of a minority of investigators at the ad hoc Tri-
bunals was not in evidence at the ICC Investigations Division. Aside from
the high levels of professional motivation and institutional loyalty which
were shown by the initial intake to the OTP as a whole (those overseeing
this initial intake deserve recognition), there were no additional monies to
be had insofar as investigative missions were undertaken, with rare excep-
tions, to locations with exceedingly spartan living arrangements and the
DSA rates had accordingly been set at negligible levels. Indeed, the situa-
tion was such that those whose jobs required deployment to the field had to
be equipped with sleeping bags, mosquito nets, medical kits and other bits
of field gear as the quality of the hotels in many of the mission areas –
where there were any hotels at all – invariably offered conditions only
marginally better than those of the local prisons.

Finally, it will be noted that at the ICTR and the ICTY, intelligence
organs with an interest in the course of particular investigations were be-
lieved, not without a good deal of prima facie evidence, to have developed
informants within the offices of the prosecutor of those institutions. One
refers, most especially, to Rwandan and Croatian security services. Quite
obviously, acting as an informant for a foreign intelligence service whilst
employed by the United Nations would constitute a grievous lapse of pro-
fessional ethics running manifestly contrary to the applicable regulations
and rules. Where the ICC-OTP was concerned, suggestions have been
made that intelligence agents loyal to the then-President of the DRC, Mr.
Joseph Kabila, developed a source within the ICC DRC Team as early as
2004. However, assertions of this nature must necessarily be characterized
as unproven. 22
9.6. Leadership at the OTPs of the ICTY, the ICTR and the ICC
From 2000 to 2005, as mentioned above, this author had the opportunity to
observe and otherwise witness the ramifications of a range of OTP leader-
ship styles across the ICTY, the ICTR and the ICC. The latter shall be con-
sidered here with an eye to illustrating the benefits which arise from effec-
tive leadership and the problems which invariably follow where it is insuf-
ficient.
9.6.1. ICTR
The deleterious effect upon the Investigations Division of the tenure of Mr.
Muna has already been touched upon. What is left to consider, briefly, is
the effect upon the Investigations Division of the ICTR-OTP of the leader-
ship of Ms. Arbour and Ms. Del Ponte; they served as chief Prosecutor dur-
ing the periods 1996–1999 and 1999–2003, respectively, with the terms of
both chief Prosecutors being marked by the production of sub-standard in-
vestigative case-files.
Ms. Arbour and Ms. Del Ponte were highly-capable as well as ethical
professionals who sought to execute their mandates in conformity with the
ideals set out in the Statute of the ICTR. Whereas both of these chief Pros-
ecutors were affable individuals, Ms. Arbour evidenced a clear ability to
tolerate fools gladly, in marked contrast to Ms. Del Ponte, rendering the
22
International offices of the prosecutor have been consistently loath to establish counter-
intelligence capabilities. This reticence has led to endless breaches of security and consti-
tutes the Achilles’ heel of all existing witness-protection arrangements.

former the more popular of the two in the eyes of the Investigations Divi-
sion management as well as the rank-and-file.
The leadership of Ms. Arbour over the Investigations Division of the
ICTR might be regarded as a failure. Admittedly, she was poorly served by
her Deputy Prosecutor, Mr. Muna, from his appointment in April 1997.
What is more, the fact that Ms. Arbour was based several-thousand kilome-
tres away in The Hague, as she was concomitantly chief Prosecutor of the
ICTR as well as the ICTY, lent Mr. Muna a freer hand to wreak havoc in
Kigali. The ICTR-OTP as a whole experienced immense growth in staffing
numbers under Ms. Arbour, and it was during this period that the ranks of
the Investigations Division came to be filled with investigators as well as
managers who were, in the main, unsuited to the investigation of breaches
of international criminal and humanitarian law.
In assessing the tenure of Ms. Arbour from the perspective of the
ICTR-OTP Investigations Division, there are a number of mitigating fac-
tors to be considered: first, the requirement that she was required to oversee
concomitantly the ICTY-OTP, which was likewise experiencing considera-
ble expansion in its staffing numbers; and second, the stellar work under-
taken by Ms. Arbour to ensure, through relations with external actors such
as the UN Security Council as well as myriad States, a future for both of
the ad hoc Tribunals. However, responsibility for a great many of the in-
vestigative shortcomings of the ICTR-OTP, most of which long outlived
Ms. Arbour’s tenure as chief Prosecutor, must be laid at her feet. If nothing
else, the term of Ms. Arbour illustrates the point that even the most inspira-
tional leader will fail where he or she does not remain in constant contact
with his or her leadership and management teams or otherwise fails to con-
trol them effectively.
The record of Ms. Del Ponte is altogether positive when seen from
the perspective of the necessity of carrying out effective investigations.
First, she sacked Mr. Muna, albeit well into her term. Second, when sack-
ing Mr. Muna, the chief Prosecutor placed trial lawyers in charge of inves-
tigations, thereby neutering, to an extent, the fact that the removal of Mr.
Muna was not coupled with changes to the ranks of the investigative man-
agement cadre. In the event, the requirement that trial counsel oversee the
investigative processes from the start served to improve the quality of the
investigative output somewhat less than it might have done were geogra-
phy not something of Ms. Del Ponte’s enemy. One refers to the fact that,
like Ms. Arbour, Ms. Del Ponte was (until 2003) concomitantly chief Pros-

ecutor of the ICTY and therefore limited in the amount of time that she
could spend in Arusha, never mind Kigali. A second problem was the bi-
furcation of the OTP between those cities, with the trial lawyers afforded
responsibility for the building of individual cases (after the sacking of Mr.
Muna) being based in Arusha, whilst the investigators were, logically
enough, situated in Kigali. A third problem was that the quality of the trial
lawyers available to Ms. Del Ponte remained uneven, despite the mass-
sacking of a number of senior counsel earlier in her tenure.
In summary, Ms. Del Ponte took several (re-)organizational decisions
which were badly needed, thereby laying the foundation for improvements
in the quality of the ICTR investigative output. Ultimately, it was her suc-
cessor, chief Prosecutor Hassan Jallow, who was left to capitalize upon the-
se improvements. The view taken here is that Ms. Del Ponte showed con-
siderable moral courage as well as institutional loyalty in reforming the
investigative management arrangements of the ICTR, through the sackings
of some and the neutering of the authority of others. For these and other
reasons, based on personal observations, the leadership of Ms. Del Ponte of
the ICTR-OTP can be assessed positively, not least given the highly unsuit-
able arrangements which had been bequeathed to her in 1999 by Ms. Ar-
bour.
9.6.2. ICTY
During her tenure as ICTY chief Prosecutor, Ms. Del Ponte made important
changes to the functioning of the Investigations Division, having inherited
from Ms. Arbour a poorly functioning operation. The removal of the Chief
of Investigations, with Mr. Lopez-Terres as his replacement, has already
been noted. Additionally, Ms. Del Ponte would later sack her Deputy Pros-
ecutor, Mr. Graham Blewitt, and Chief of Prosecutions, Mr. Michael John-
son, though the reason for their removal in 2004 was unrelated to the prop-
er functioning of the Investigations Division. 23 As at the ICTR-OTP, ICTY-
OTP trial counsel were placed in charge of the building of individual case-
files, thereby circumventing, for the most part, the collective insufficiency
of the management and rank-and-file membership of the Investigations Di-
vision.
23
Mr. Blewitt and Mr. Johnson were removed from their posts after Ms. Del Ponte received
evidence that they were advocating for the replacement of Ms. Del Ponte as ICTY chief
Prosecutor.

The changes initiated in The Hague worked well for two reasons.
First, the Investigations and Prosecutions Divisions were situated in the
same building, not one thousand kilometres apart, as was the case with the
ICTR. Second, the Investigations Division of the ICTY had at its disposal a
large number of highly specialized as well as capable linkage analysts, sit-
uated within the Leadership Research and Military Analysis Teams (‘LRT’,
‘MAT’). Analysts from these teams already worked closely and construc-
tively with OTP trial counsel when cases came to trial. These linkage ana-
lyst–trial counsel relationships were generally predicated on the fact that,
prior to the reform of the management of the investigative processes, more
often than not, trial counsel found themselves commencing litigation with
insufficient linkage evidence to secure a conviction on some or all of the
offences alleged in any given indictment. Under the circumstances, when
trial counsel assumed responsibility for case building during the investiga-
tive phase, rather than only at the start of trial – by which point investiga-
tions should, as a matter of professional ethics and procedural fairness have
been all but complete – the analyst–counsel relationships of this nature
served to inform positively the ICTY-OTP case-files developed from 2001.
9.6.3. ICC
The paucity of disciplinary breaches and like failures by rank-and-file per-
sonnel at the ICC-OTP witnessed by this author during 2003–2005 owed
much to a strong culture of institutional loyalty, effective management and,
where Dr. Brammertz was concerned, effective leadership.
The difficulties experienced by the ICC-OTP in bringing consistently
credible allegations against the accused and, in turn, securing convictions
where allegations have given rise to charges has been examined ad nause-
um elsewhere and need not be recounted here. What will be observed in
this chapter is the fact that the initial recruitment effort of the OTP – which
was in the enviable position of poaching top-drawer talent from elsewhere
in the system of international criminal justice during a period of OTP re-
form at the ad hoc Tribunals – led to the retention of a great many highly-
experienced investigators, analysts and lawyers with an inherent belief in
the mission of the Court as this was set out in the language of the Rome
Statute and in the carefully drafted vacancy announcements and job de-
scriptions by the Preparatory Team. Likewise, the selection of investigative
managers from outside of the field of international criminal justice was un-
dertaken with considerable care. The bulk of the credit for the positive hir-

ing practices must go to Serge Brammertz and, before he was installed, to

the Senior Legal Adviser of the OTP, Morten Bergsmo, who had designed
the initial system of qualification requirements – setting proper standards –
already in 2002-2003.
It was not until Mr. Moreno-Ocampo began to engage personally in
the hiring of OTP personnel, for the most part not until the period 2004–
2005, that individuals ill-suited to employment in the field of international
criminal justice began to appear at the OTP. Prior to this point, Mr. More-
no-Ocampo had not concerned himself unduly with staffing matters, par-
ticularly where the latter impacted upon the Investigations Division. For
these and other reasons which have already been noted, the quality of the
initial OTP staff intake gave rise to a culture of institutional loyalty and
professional competence, which facilitated effective investigations centred
upon the eastern DRC and northern Uganda. At the same time, Mr. More-
no-Ocampo served, in his inimitable manner, as a powerful advocate inter-
nally for the mission of the Court. Or such was the case until, in 2004, the
chief Prosecutor began to micro-manage the Investigations Division per-
sonnel who, aside from their prior international service, brought a great
deal of experience from their domestic military, security-intelligence, po-
lice and prosecutorial organs – and concomitantly were quick to recognize
that the would-be emperor had no clothes.
Certain of the egregious ethical lapses of Mr. Moreno-Ocampo have
been well documented elsewhere, not least by the erstwhile chief Prosecu-
tor himself, however unwittingly, through the release into the public do-
main of a great deal of his personal and professional correspondence. His
troublesome tenure as ICC chief Prosecutor was, it is here held based on
personal observations, informed by three phenomena.
First, Mr. Moreno-Ocampo evinced what might be termed a Louis
XIV tendency. Just as the Sun King had allegedly claimed, “l’état, c’est
moi”, Moreno-Ocampo clearly believed that the Court did not, and perhaps
could not exist independently of his genius. In fairness, whilst Moreno-
Ocampo is not known to have proclaimed, “la cour, c’est moi”, he most
certainly left his subordinates with the impression that this was his belief.
Secondly, Mr. Moreno-Ocampo displayed a self-confessed tendency
to micro-manage his subordinates at all levels, which had the effect of rob-
bing them – and by extension, the OTP as a whole – of the sort of individu-
al initiative which is absolutely key to the resolution of complex problems,
the likes of which frequently confront international investigators grappling

with the challenges of prima facie evidence collection in hostile environ-

ments.
Thirdly, the ICC chief Prosecutor proved to be incapable of translat-
ing his vision for the OTP into concrete objectives to be assigned, in turn,
to his deputies as well as the managerial cadre to execute over the medium-
and longer-term without ongoing interference (or wholesale change of plan)
emanating from the chief Prosecutor.
Finally, Mr. Moreno-Ocampo, perhaps for reasons of hubris, fancied
himself a savvy politico-diplomatic operator, despite having arrived at the
Court with no experience in this domain. His engagement on the politico-
diplomatic level, in a manner clearly not foreseen by the drafters of Rome
Statute, created opportunities for more seasoned, domestic operators to run
metaphorical circles around the chief Prosecutor, with the result that the
OTP was occasionally instrumentalized by self-interested States. The refer-
ral of the Libya situation to the Court by the United Nations Security
Council as well as the arrest of Jean-Pierre Bemba, both of which occurred
with the connivance of the chief Prosecutor despite the nakedly political
objectives of the external parties pushing for these courses of action, tran-
spired notwithstanding the fact that the OTP was ill-equipped to mount an
effective criminal-investigative response in either case.
Recalling the circumstances of the Libya referral, amongst other cas-
es, constitutes a reminder that institutional loyalty requires that leaders
consider at all times the long-term health of the institutions which they lead,
not least, to points beyond their own tenure. In this respect, additional to
others, Mr. Moreno-Ocampo failed miserably, saddling as he did his suc-
cessor with a great many investigative challenges which could not easily be
resolved, if they could be resolved at all. The difficulties which have been
experienced in attempting to undo the disastrous legacy of Mr. Moreno-
Ocampo have, in this author’s personal view, served to sap OTP staff mo-
rale whilst concomitantly giving rise to questions regarding the competence
of the Court as a whole. In its entire history, the field of international crim-
inal justice has never seen the likes of Mr. Moreno-Ocampo; and, if the
system is to survive in anything approximating its current form, it would do
well to avoid seeing his like again.

9.7. Leadership, Professional Integrity and Their Intersection with

International Investigative Processes
The offices of the prosecutor of the international courts and tribunals have
two core functions: (1) the building of case-files for prosecution (that is,
investigations) and (2) litigation. Legal-analysis sections, units which serve
victims, public-engagement and the like, whilst all necessary functions,
constitute secondary duties whose sole function is, or ought to be, the pro-
vision of support to the investigative and litigative core. The proper execu-
tion of these central tasks requires the effective input of three categories of
professionals: investigators, analysts and counsel. Although it is essential to
the realization of the core mission that these professionals should work in
harmony with one another, their respective responsibilities are distinct.
9.7.1. Investigators
Investigators are, in the main, of little use in the office, that is, they should
be deployed as often as possible by those heading investigative teams with
the aim of collecting information of evidentiary value, which will ultimate-
ly withstand the scrutiny of pre-trial, trial and appellate proceedings. The
successful investigator must embody a measure of cunning in his or her
approach to the collection of information, particularly in the search for
prima facie linkage evidence. This assertion follows from the fact that a
linkage case which has been properly constructed will rest heavily upon
documentation generated by the perpetrating institutions, the acquisition of
which shall, more often than not, require the exercise of considerable crea-
tivity on the part of the investigators involved in its acquisition. Additional-
ly, the building of linkage cases will, in almost every case, lead to the re-
cruitment of so-called insider witnesses, in particular, individuals who have
served alongside the suspects-cum-accused within the perpetrating struc-
tures. It is something of an understatement to observe that the co-operation
of witnesses of this nature is rarely driven by a disinterested commitment
to the fundamental principles of justice. As such, insider witnesses need to
be handled from the start with a great deal of psychological dexterity. Fi-
nally, to ensure the effective execution of their mission, investigators will
necessarily avoid dubious collection methods which involve resort to low
cunning, for instance, the offering of false inducements to putative witness-
es. Conduct of this nature is at all times impermissible in order to maintain
the reputation of the institutions for which investigators work and, more
immediately, to avoid any violation of the rules of procedure and evidence

which constitute the ultimate guide to investigative conduct insofar as in-

admissible evidence is no evidence. For these reasons, investigators must
excel at the art of followership whilst being carefully managed and led.
9.7.2. Analysts
Analysts tend to work from institutional headquarters, their primary func-
tion being to transform the information collected by investigators into evi-
dence through analytical processes undertaken within the context of the
applicable substantive law. As a general rule, analysts need not concern
themselves with matters of procedural law, unless they suspect a violation
of the same. However, it is imperative that they should remain alert at all
times to any formal requirement to consider exculpatory evidence, 24 not
least in order to ensure that any case brought to trial will withstand judicial
scrutiny. The bulk of the analytical effort which goes into the case-building
process is, like the work of investigators, focused upon the building of the
linkage case, that is, establishing to a beyond-reasonable-doubt standard
the connections between higher-level suspects and the physical authors of
the underlying criminal acts. Broadly speaking, in the building of linkage
cases, analysts are focused upon the command, control and communica-
tions arrangements of perpetrating structures; in this context, analysts re-
sort to their intellect as well as an array of software which has been devel-
oped to link fact to law, for instance, CaseMap and the Case Matrix. Effec-
tive linkage analysis demands of the analyst – and, for that matter, the
skilled investigator – the possession of a well-developed understanding of
the modes of liability set out in international criminal and humanitarian law
and the legal requirements thereof. For this reason, the profile of the aver-
age investigator and analyst has evolved markedly over the last 10 to 15
years, their ranks having come to include a substantial number of individu-
als with a legal education.
9.7.3. Counsel
Persons employed as counsel within international courts and tribunals tend
to be, as in domestic jurisdictions, highly specialized in one of a number of
24
For instance, in the Rome Statute of the International Criminal Court, 17 July 1998, Article
54(1)(a) (https://legal-tools.org/doc/9c9fd2), where the Prosecutor is required to “[i]n order
to establish the truth, extend the investigation to cover all facts and evidence relevant to an
assessment of whether there is criminal responsibility under this Statute, and, in doing so,
investigate incriminating and exonerating circumstances equally”.

sub-disciplines. The specialization of primary relevance to the case-

building process is that of trial counsel.
Trial counsel prosecute cases before first-instance chambers and, as
has been a general rule since the early 2000s, are integrated to a greater or
lesser degree into the investigative and analytical processes. The principal
role of trial counsel – acting as required with the support of appellate coun-
sel as well as lawyers specialized in procedural law – is to ensure, as early
in the case-building process as possible, that prosecution cases are (being)
assembled in accordance with the applicable substantive law. As a matter of
self-preservation, given that it is trial counsel who appear in court, they
should be highly motivated in the use of quality-control measures geared
towards the proper application of substantive and procedural law. Where
evidence is insufficient or lacking, judges will – and should – hold trial
counsel responsible. Lead prosecutors who blame trial judges for setbacks
in court ought, as a general rule, to be encouraged by the leadership of of-
fices of the prosecutor to seek employment elsewhere.
9.7.4. Case-Building Arrangements at the ICTY and the ICTR
During Their Formative Years
When international criminal justice re-emerged in 1993 as a discipline for
the first time since the late-1940s, the investigative culture of the Investiga-
tions Division stood up at the ICTY-OTP mirrored in a number of signifi-
cant respects the investigative practices of several adversarial systems, in
particular, those of Australia, Canada, New Zealand and the United King-
dom – the States from which the bulk of the investigators were recruited
until several years after the turn of the century. What is more, only one of
the many investigators employed by the ICTY-OTP during its first decade
was not a police officer by profession, notwithstanding the fact that the
substantive investigative work undertaken during the immediate post-1945
period was performed by military intelligence officers and lawyers. 25 More
problematical still was the fact that until 2001, the ICTY-OTP Investiga-
tions Division management cadre had tended as a general rule to exclude
counsel from the case-building process.
Whereas a great many analysts were employed by the ICTY from the
1990s, they had been used improperly by the Investigations Division man-
25
Prior to joining the ICTY, the investigator in question was employed as an intelligence of-
ficer by a domestic security service.

agers and sub-managers until 2001. This was hardly surprising given that
very few of the police officers employed by the ICTY during its first dec-
ade arrived at the OTP after having witnessed the sort of analytical input
which informs the building of multifaceted criminal cases in which the in-
vestigative targets stand several organization layers above the physical per-
petrators of the underlying criminal acts. As far as the casual observer
could tell, the police officers retained by the OTP for most of its first dec-
ade hailed from the domains of routine domestic policing and (domestic)
murder squads. One has no reason to doubt that the ICTY-OTP investiga-
tors had been highly proficient in these domestic realms. However, the dif-
ficulty with recruitment from these specializations was that what was need-
ed were men and women with a grasp of complex fraud and transnational
crime, insofar as the investigative methodology used in these areas approx-
imates closely that of international criminal investigations.
The exclusion of trial counsel from investigative processes gave rise
to a situation prior to 2001 in which the litigators tended to see the case-
files assigned to them only on the metaphorical eve of trial, that is, after
suspects had been rendered accused persons and, more often than not, al-
ready spent periods of time in pre-trial custody which would be uncon-
scionable in the jurisdictions in which all concerned had worked domesti-
cally. Secondly, owing to the (mis-)recruitment and promotion practices
within the Investigations Division, the files were invariably a mess at the
outset of the trial. One erstwhile senior trial attorney likened what the trial
lawyers were seeing – when they finally did see the case-files – as akin to
“getting inundated with three filing cabinets full of statements and docu-
ments”, which had not been assembled in any coherent manner. 26 Far
worse than the poor organization of the case-files was the fact that a great
many trials commenced with the prosecutors possessing insufficient link-
age evidence to warrant a conviction – naturally enough raising questions
regarding whether the accused ought to have been indicted and detained.
The action taken by the ICTY-OTP in these situations would see the senior
trial attorneys responsible for a case which was in disarray initiate as well
as lead a proper linkage investigation, generally with one of the LRT or
MAT linkage analysts working closely to hand, whilst concurrently leading
the prosecution in court. Manifestly, an approach to investigations and
prosecutions of this nature would never have been tolerated in any of the
26
Quoted in John Hagan, Justice in the Balkans: Prosecuting War Crimes in the Hague Tribu-
nal, University of Chicago Press, 2003, p. 224.

national justice systems from which the majority of ICTY investigators,

analysts and counsel had been drawn.
Similar problems were witnessed at the ICTR, albeit for slightly dif-
ferent reasons. As with the ICTY, the majority of the investigators were
police officers. However, the ranks of the ICTR-OTP Investigations Divi-
sion included a handful of individuals with legal, military and intelligence
backgrounds. Additionally, owing to the requirement for French-language
skills in the Rwanda of that period, the bulk of the investigators had been
drawn from inquisitorial systems which followed French criminal proce-
dure, or some variation thereupon. 27 It followed from this arrangement that
the culture of the Investigations Division at all phases of the investigative
process was not in the least hostile to the input of counsel. Indeed, during
the first decade of the life of the ICTR, the OTP had anywhere from 8 to 10
counsel based in Kigali, with the bulk of OTP lawyers working from the
seat of the Tribunal in Arusha. Whilst investigators were formally respon-
sible for the building of cases, this fact alone does not – given the presence
of full-time counsel in the Kigali office – explain the generally poor quality
of the files with which the litigators in Arusha were presented prior to trial.
The insufficiency of most case-files on the eve of trial is a phenomenon
better attributed to the dearth of analysts of any kind at the ICTR as well as
the unacceptable number of professional incompetents infecting the ranks
of the OTP as a whole in the view of this author – notwithstanding the fact
that relatively early in her term as chief Prosecutor, Ms. Del Ponte had
sacked an impressive number of senior OTP counsel. A cull of incompetent
personnel on this scale had not – and has not since – been witnessed at any
international office of the prosecutor, although the effort made by Ms. Del
Ponte clearly constituted an insufficient tonic for the overall health of that
investigative and prosecutorial body.
9.7.5. Investigations Division Reforms at the Ad Hoc Tribunals
The problems which plagued the case-building process at the ICTR were
ultimately resolved, to the extent that they were resolved, by improvements
in the recruitment of trial counsel and their increasing engagement in the
case-building process. As has been noted already, at the ICTY, Ms. Del
Ponte sacked the police officer who was leading the Investigations Division
27
There were very few French investigators at the ICTR. Rather, the OTP had a great many
investigators from former French colonies that had retained variants of French procedural
law following independence.

in 2001, replacing him with a French investigative judge whilst concomi-

tantly removing the authority of the investigations commanders, who sat
between the investigative team leads and the chief of investigations. In
their stead, ICTY-OTP senior trial attorneys were assigned to cases early in
the case-building process.
What emerged from these changes was a two-track system which, in-
tentionally or otherwise, incorporated a number of checks and balances,
which served to improve over time the quality of ICTY case-files prior to
indictment and, most especially, prior to trial. On the one hand, the core of
the Investigations Division remained built around investigative teams con-
structed upon thematic lines, for instance, Bosnian-Serb crimes, Croatian
criminality and Kosovo Liberation Army misconduct. At the same time, the
investigative teams began to serve little more than administrative functions,
akin to home-room or registration in a secondary school, that is, the assem-
bly point at which attendance is taken and administrative instructions im-
parted, with the students otherwise moving between various lessons else-
where in accordance with individual timetables. The OTP crime-base ana-
lysts remained with the investigative teams, although the nature of their
output, before and after the reforms to the Investigations Division, was
never evident to the OTP personnel who understood how to assemble a
prosecution case. Additionally, the specialized linkage analysis teams re-
mained intact – the LRT and the MAT – serving the ‘home-room’ function
and as centres for a great deal of peer review; as with the investigative
teams, their members were farmed out to the case-building and prosecution
teams, in accordance with their thematic speciality. From 2001, the linkage
analysts continued to work closely with the senior (or more seasoned) trial
attorneys who were responsible for the prosecutorial and, after the afore-
mentioned changes had been made, investigative processes. In summary,
then, the Prosecutions Division of the ICTY assumed effective control over
OTP investigations from the Investigations Division in 2001, drawing upon
individual Investigations Division personnel as required, once it had been
determined by Ms. Del Ponte that the Investigations Division management
was not fit for purpose. This reformed approach to case building at the IC-
TY-OTP worked well by breaking down the divisions which had existed
prior to 2001 between the investigative, analytical and legal functions.
Where problems within the case-specific teams did arise, these were invar-
iably a reflection of the insufficient competence shown by key personnel,
in particular, the senior trial attorney and, equally, the senior linkage ana-

lyst serving within the case-specific team, generally (if the senior trial at-
torney had any sense) at his or her right hand.
9.7.6. The Effective Management of Case-Building Processes
It should not be inferred from the improved investigative practices of the
OTPs of the ICTY and the ICTR that an effective case-building effort
might be achieved only where a senior trial attorney serves in the lead role.
Such an arrangement is desirable, given that prosecution cases, to be effec-
tive, require a clear understanding of the substantive law. However, the in-
creasing number of legally trained, or otherwise legally aware investigators
and analysts working in the system of international criminal justice points
to the potential for an investigator or analyst to serve as a case-specific
team manager, prior to a given case proceeding to trial. Where an investiga-
tor or analyst is assigned to the lead role in such situations, it remains nec-
essary for trial counsel to remain close to hand to advise the case-specific
team manager on questions relating to the intersection of evidence and law.
By way of example, non-lawyers have served as investigative team leaders
at what remains, to date, the only non-public international criminal and
humanitarian law investigative body, that is, the Commission for Interna-
tional Justice and Accountability (‘CIJA’). In particular, CIJA has, on occa-
sion, appointed non-lawyers to the head of investigative teams, with a law-
yer acting as the de facto second in command, generally where the day-to-
day challenges of prima facie evidence collection in high-physical-risk en-
vironments exceed those posed in meeting the legal requirements of effec-
tive case building. 28 In a similar vein, the longstanding ICC-OTP Chief of
Investigations is a former police officer, though his deputy (that is, the In-
vestigations Coordinator) is a Portuguese prosecutor and the case-by-case
investigations at the ICC-OTP are overseen for all intents and purposes by
Prosecutions Division counsel.
9.8. Conclusion
It is the duty of States as well as the supranational institutions which sup-
port international criminal justice to ensure that qualified personnel are ap-
pointed to leadership positions within offices of the prosecutor and, equally,
to engineer their prompt removal where their professional competence or
28
For instance, the CIJA Da’esh Crimes Team has seen three team leaders since January 2014,
each of whom brought to the position significant field experience in a military and intelli-
gence capacity vis-à-vis non-State actors operating in areas of high-intensity armed conflict.

personal conduct falls below minimally-acceptable standards. If nothing

else, this is a central point that informs this volume, in accordance with the
concept note which serves as its foundation. 29 It is likewise the responsibil-
ity of those leading offices of the prosecutor to ensure that their prosecu-
tions and investigations divisions are properly managed, with the goals es-
tablished by the leaders being executed in a timely manner by the man-
agement cadre. Concomitantly, it falls to these leaders to foster organiza-
tional cultures which are characterized by, above all, professional compe-
tence and institutional loyalty. Personal and professional integrity – which
are inseparable concepts – will follow naturally where the standards of
conduct applicable to all personnel, not least chief and deputy prosecutors,
are clear; and, where there is misconduct of any sort, leaders must ensure
that disciplinary systems are in place and brought to bear. Where standards
are permitted to slip, institutional rot shall set in quickly; and, where there
is institutional rot, the investigative and prosecutorial output of the institu-
tion will be poor, not least because many of the high-performing personnel
are likely to seek employment elsewhere.
Since 1993, international courts and tribunals have shown only a lim-
ited collective awareness of the simple prescription set out in the preceding
paragraph; this fact is all the more shocking, because the core principles of
leadership, management and followership are central to the proper perfor-
mance of any institution, be it a commercial firm or a public-sector institu-
tion. It is appreciated here that there are unique pressures, political as well
as social, frequently weighing heavily upon those bodies raised to deliver
international criminal justice, not least their investigative and prosecutorial
arms. However, the quality of office of the prosecutor leadership at any of
the international courts and tribunals, particularly during the formative
years of the post-1993 era, has proved itself to be uneven in a number of
important respects. In part, these shortcomings have arisen from the mon-
umental challenges inherent in the process of institution-building whilst
under pressure. However, certain of the more egregious failings – those of
Mr. Moreno-Ocampo and Mr. Muna, most especially – must be ascribed to
personal unsuitability for international leadership appointments and insuf-
ficient professional competence for the task at hand.
A number of the chief and deputy prosecutors appointed since 1993
have absorbed, perhaps unconsciously, certain of the core principles of
29
Bergsmo, 2018, see above note 8.

leadership identified in this chapter and, in turn, applied them to the offices
of the prosecutor for which they have been entrusted with responsibility.
The examples of Ms. Del Ponte and Dr. Brammertz have been cited in this
chapter, though one hastens to add that there have been others. What has
ultimately set apart the successful leaders from those who have come up
short is their willingness to sack non-performing managers as well as rank-
and-file personnel who ought never to have been retained – conduct which
reflects, amongst other considerations, their understanding of the im-
portance of ensuring excellence in the execution of the investigative and
prosecutorial functions (that is, the core tasks) of an office of the prosecutor.
However, until the principles of effective leadership and management in
(most especially) the area of international criminal investigations are more
widely discussed, the overall prosecutorial output of the system of interna-
tional criminal justice shall continue to fall short of what might be expected
as a reasonable return on the monies which are poured annually into this
endeavour.

10
______
Decency as a Prerequisite to
Integrity in International Proceedings
Andrew T. Cayley *
Hans Holbein’s portrait of Sir Thomas More graced the programme of the
conference that gave rise to the papers in this volume. I expect his face to
appear on the cover of the book. He was a man of principle and conscience
at a time, in England, when that took very great courage indeed. In Robert
Bolt’s play, A Man for all Seasons, which depicts the last year of More’s
life, More says:
I believe, when statesmen forsake their own private con-
science for the sake of their public duties, they lead their
country by a short route to chaos. 1
10.1. Introduction
Decency should be a natural part of the private conscience. But it is one of
those human qualities which is hard to define with absolute precision be-
cause all of us have such differing experiences and instincts shaped by the
challenges we have met and the decisions we have made in the face of
those challenges.
The American sociologist and civil rights activist, William E.B. Du
Bois, wrote:
How shall Integrity face Oppression? What shall Honesty do
in the face of Deception, Decency in the face of Insult, Self-
Defence before Blows? How shall Desert and Accomplish-
ment meet Despising, Detraction, and Lies? What shall Virtue
do to meet Brute Force? There are so many answers and so
contradictory; and such differences for those on the one hand
*
Andrew T. Cayley CMG QC is the United Kingdom’s Director of Service Prosecutions and
former Senior Prosecuting Counsel at the International Criminal Court and the International
Criminal Tribunal for the former Yugoslavia. Between 2009 and 2013, he was the Interna-
tional Co-Prosecutor of the Extraordinary Chambers in the Courts of Cambodia. The chapter
draws on judgments in cases on which he has worked or been closely associated with.
1
Robert Bolt, A Man for All Seasons, 1954.

who meet questions similar to this once a year or once a dec-

ade, and those who face them hourly and daily. 2
Here the author was confronting the responses of African Americans
in the face of extreme forms of discrimination and oppression – human vir-
tue placed under the kind of immense strain that most of us never have to
endure in our daily lives. As the author points out, the response of an indi-
vidual who has to regularly confront the worst aspects of human nature
may well be very different from someone who meets this test once a year
or once every ten years. And while experiences in the courtroom are gener-
ally not as powerful, dramatic or shameful as those to which Dubois refers,
the fact is that we have all encountered in our legal careers confrontations
between honesty and deception, clashes between decency and insult. And
we have had to calibrate a response to these clashes.
How legal counsel should conduct themselves is governed by the
rules which proscribe standards of professional conduct – mostly in terms
of the relationship between counsel and the court, and counsel and their
client. In the international courts, where rules of conduct are less ingrained
and less a part of a normative structure when compared to most domestic
systems, private conscience has tended to play a much more significant
role in the decisions made or the course that was set.
I could glibly discuss at great length what decency means to me and
how it has played its part in my legal career and court work. The truth is,
like everyone else, I have struggled with the rights and wrongs of conduct.
And beyond the most obvious examples of what is clearly decent conduct,
and what is not, I have no easy way of objectively and definitively evaluat-
ing the vast majority of conduct before the courts.
In terms of my own professional experience: in 2004, I refused to
draft an indictment for war crimes and crimes against humanity against an
individual where I believed there was an insufficiency of evidence, even
with a chief Prosecutor insisting on bringing such charges. I thought that
obviously wrong, and by 2012 the principal accused in that case had been
tried twice and acquitted twice. Later in 2007, I resigned from a job in the
international courts I loved because, eventually, my private conscience be-
came so weighed down and exhausted that I simply had to go. In Southeast
Asia in 2011, I risked contempt proceedings to prevent what I saw as a
miscarriage of justice. These few examples do not place me beyond re-
2
William .E.B. Du Bois, The Ordeal of Mansart, Kraus-Thomson, 1976, p. 275.

10. Decency as a Prerequisite to Integrity in International Proceedings
proach, but I think my reflexes are now well-tuned to what decency re-
quires.
The English word ‘decency’ has its origins in the Ancient World. It is
from the Latin present participle ‘decere’, meaning fitting or suitable. De-
cency in the courts is about trust and being honest in court proceedings. I
approach this discussion as someone who has predominantly prosecuted
before the courts. Of the international defence work I have done, I would
readily accept that the duties affecting defence counsel are much more
challenging, in particular balancing the interests of fearlessly defending a
client against the overarching interests of the proper administration of jus-
tice. But in the end, whether prosecuting or defending, if the courts do not
trust us as counsel, they are not going to believe us.
Decency, I would submit, may often require you, particularly when
prosecuting, to act in a way that is not self-serving. It may require you to
lose a point or argument in the courtroom.
Decency, you will find, is at the heart of almost all sets of regulations
for the governance of counsel before domestic and international courts. To
take my own legal system, that of England and Wales, as a straightforward
example: counsel have ten core duties to comply with, and these duties ap-
ply to all counsel whatever the area of law in which they practice. 3 The du-
ties are laid down by an organization called the Bar Standards Board,
which is the independent regulator which governs the conduct of barristers
in England and Wales. 4
The ten core duties are:
1. You must observe your duty to the court in the administration of jus-
tice.
2. You must act in the best interests of each client.
3. You must act with honesty, and with integrity.
4. You must maintain your independence.
5. You must not behave in a way which is likely to diminish the trust and
confidence which the public places in you or in the profession.
6. You must keep the affairs of each client confidential.
3
“The Code of Conduct”, The Bar Standards Board Handbook, fourth edition, 2019, part 2,
sect. B, p. 22 (‘The Core Duties’).
4
Ibid., p. 9.

7. You must provide a competent standard of work and service to each

client.
8. You must not discriminate unlawfully against any person.
9. You must be open and co-operative with your regulators.
10. You must take reasonable steps to manage your practice, or carry out
your role within your practice, competently and in such a way as to
achieve compliance with your legal and regulatory obligations. 5
Article 24 of the Code of Professional Conduct for Counsel of the In-
ternational Criminal Court (‘ICC’) sets out counsel’s duties towards the
Court:
24(1). Counsel shall take all necessary steps to ensure that his
or her actions or those of counsel’s assistants or staff are not
prejudicial to the ongoing proceedings and do not bring the
Court into disrepute.
24(2). Counsel is personally responsible for the conduct and
presentation of the client’s case and shall exercise personal
judgement on the substance and purpose of statements made
and questions asked.
24(3). Counsel shall not deceive or knowingly mislead the
Court. He or she shall take all steps necessary to correct an er-
roneous statement made by him or her or by assistants or staff
as soon as possible after becoming aware that the statement
was erroneous.
24(4). Counsel shall not submit any request or document with
the sole aim of harming one or more of the participants in the
proceedings.
24(5). Counsel shall represent the client expeditiously with the
purpose of avoiding unnecessary expense or delay in the con-
duct of the proceedings. 6
The domestic regulations of England and Wales require of counsel a
positive duty of decency. The ICC, an international court arguably sitting at
the apex of the domestic criminal courts of the world, expresses the duty of
decency in the negative – what you cannot do, not what you must do. And
5
See above note 3 (emphasis added).
6
ICC Code of Professional Conduct for Counsel, 2 December 2005, ICC-ASP/4/Res.1
(https://www.legal-tools.org/doc/f9ed33) (emphasis added).

that is surprising as you would think, because of complementarity, the ICC

would want to lead the world in this vital area of counsel’s conduct.
In the early days of the ad hoc tribunals, I recall that the formal atten-
tion paid to the professional conduct of counsel was fairly limited – both
for prosecutors and defence counsel, although arguably all were subject to
at least part of their own domestic rules. 7 The discussions that took place
over counsel’s duties, when such issues did arise, always seemed to default
back to the national systems of those discussing the issue of concern at the
time. At the International Criminal Tribunal for the Former Yugoslavia
(‘ICTY’), lawyers had been recruited from many different jurisdictions.
And while national systems do all slightly differ on what is regarded as de-
cent or indecent conduct, the fundamental principles seemed to me to be
broadly the same.
At the ICTY, it was the defence bar who first published a code of
professional conduct for counsel appearing before the court. 8 That was in
June 1997. The Office of the Prosecutor took until September of 1999 to
come up with a set of Standards of Professional Conduct for Prosecution
Counsel. 9 And that was Prosecutor’s Regulation No 2 of 1999. If you ex-
amine this set of prosecutors’ rules, it reads broadly, like the English Bar
Standards Board set of core principles. So, requirements of independence,
integrity, good faith and, above all, a duty of candour and honesty to the
Tribunal itself – that is, Rules 2(e) and 2(h). Prosecutors must tell the truth
before the court, and if they find out they have not told the truth, which can
happen whereby you believe something to be true and then later find out it
is false, you have a duty to tell the court quickly and correct the position.
Judges too have duties to the court and the administration of justice.
The decency required of them primarily centres around independence, im-
partiality and integrity. Fundamentally, they cannot be seen to be influ-
enced in their decision-making by external factors, nor in any way biased
7
See, for example, Solicitors Regulatory Authority Overseas Rules, 2013.
8
International Criminal Tribunal for the former Yugoslavia (‘ICTY’), Code of Professional
Conduct for Counsel Appearing before the International Tribunal, 1997, IT/125 REV. 3
(https://www.legal-tools.org/doc/rtgkbb).
9
ICTY and International Criminal Tribunal for Rwanda (‘ICTR’), Standards of Professional
Conduct for Prosecution Counsel, Prosecutor’s Regulation No 2 (1999), 14 September 1999
(https://www.legal-tools.org/doc/d74c40).

in dealing with the parties. Judicial codes for the ad hoc tribunals and the
ICC state broadly similar duties. 10
As I have already discussed, decency can be an abstract concept so,
for the purposes of this chapter, it is of value to give some concrete exam-
ples of how international courts have interpreted requirements of conduct
for both counsel and judges.
10.2. The Prosecutor v. Radislav Krstić
Between 1999 and 2001, I was junior counsel in the Krstić case. 11 It was
the first prosecution at the ICTY for the crime of genocide. It was a har-
rowing trial with evidence which garnered much public attention because
of the nature of the principal charge. Krstić was convicted, after trial, of
genocide, crimes against humanity and a war crime. 12 At first instance, he
was sentenced to forty-six years imprisonment. 13
During the trial, everyone felt the overwhelming weight and tragic
nature of what took place. It had a profound impact on us all. To this day,
nearly twenty years on, reading the first part of the trial judgment, I still
sense this great outpouring of grief and righteous anger in the face of in-
dustrial killing. You can see in those paragraphs how the judges felt. They
were deeply affected by what they had seen and heard, but they had to pub-
licly express that any private indignation they felt had to be put out of their
mind for the sake of a fair trial:
The events of the nine days from July 10-19 1995 in Srebreni-
ca defy description in their horror and their implications for
humankind’s capacity to revert to acts of brutality under the
stresses of conflict. In little over one week, thousands of lives
were extinguished, irreparably rent or simply wiped from the
pages of history.... The Trial Chamber cannot permit itself the
indulgence of expressing how it feels about what happened in
Srebrenica, or even how individuals as well as national and in-
ternational groups not the subject of this case contributed to
the tragedy. This defendant, like all others, deserves individu-
10
See, for example, ICTY, Code of professional conduct for the judges of the Tribunal, 6 July
2016, S/2016/976 (https://www.legal-tools.org/doc/55lsey); ICC, Code of Judicial Ethics, 2
January 2005, ICC-BD/02-01-05 (https://www.legal-tools.org/doc/383f8f).
11
ICTY, Prosecutor v. Krstić, Trial Judgement, 2 August 2001, IT-98-33-T (‘Krstić case’)
(https://www.legal-tools.org/doc/440d3a).
12
13
Ibid., para. 726.

alised consideration and can be convicted only if the evidence

presented in court shows, beyond a reasonable doubt, that he
is guilty of acts that constitute crimes covered by the Statute
of the Tribunal (“Statute”). 14
The judges were conscious as we all were of the need to be fair to
Krstić a fortiori in the face of such terrible crimes and such powerful evi-
dence. But, in my own experience, human beings can sometimes struggle
to be completely fair when the crimes are very grave. The bellowing cries
for justice drown out those whispers for fairness.
On appeal, amongst other grounds, the Defence claimed that Krstić
had not received a fair trial because the Prosecution had not, in a number of
instances, acted decently or fairly. The assertions included that the Prosecu-
tion had withheld copies of exhibits for tactical reasons; had concealed a
tape for later submission as evidence in cross-examination; and had violat-
ed Rule 68 (disclosure of exculpatory material). 15
Prior to the trial, and pursuant to Rule 65ter(E) (as it then was) of the
ICTY Rules of Procedure and Evidence (‘ICTY Rules’), the Defence
sought copies of exhibits upon which the Prosecution intended to rely at
trial. The Prosecution refused to disclose these exhibits on the basis that it
was not bound to do so absent a request for reciprocal disclosure under
Rule 67(C) of the ICTY Rules which the Defence did not make. 16 This rule,
at the time of Krstić, stated:
If the defence makes a request pursuant to Sub-rule 66 (B), the
Prosecutor shall be entitled to inspect any books, documents,
photographs and tangible objects, which are within the custo-
dy or control of the defence and which it intends to use as evi-
dence at the trial. 17
Rule 66(B) of the ICTY Rules stated:
The Prosecutor shall, on request, permit the defence to inspect
any books, documents, photographs and tangible objects in
the Prosecutor’s custody or control, which are material to the
preparation of the defence, or are intended for use by the
14
Ibid., para. 2.
15
Krstić case, Appeals Judgment, 19 April 2004, IT-98-33-A, para. 152 (‘Krstić appeal’)
(https://www.legal-tools.org/doc/86a108).
16
Ibid., para. 154.
17
ICTY Rules of Procedure and Evidence, November 1999, IT/32/Rev. 17 (‘ICTY Rules’)
(https://www.legal-tools.org/doc/mo8alp).

Prosecutor as evidence at trial or were obtained from or be-

longed to the accused. 18
The issue of disclosure of exhibits was raised in a pre-trial confer-
ence, where the Defence was denied access to the documents in question. 19
The exhibits relied upon by the Prosecution were subsequently disclosed as
the trial proceeded. 20
In refusing to order the Prosecution to disclose all its exhibits prior to
trial, the pre-trial Judge had held that if the Prosecution was obliged to
communicate all of its exhibits to the Defence, in the absence of any recip-
rocal disclosure by the Defence under Rule 67(C), it would result in ine-
quality of arms. 21 On appeal, the Defence argued that the pre-trial Judge
was wrong in finding that the Prosecution was not obliged by Rule 65ter to
disclose copies of exhibits to the Defence prior to the commencement of
trial, and that Krstić, therefore, did not receive a fair trial. 22 Rule 65ter re-
quired in relevant part that the pre-trial Judge order the Prosecutor to file a
list of exhibits for the benefit of the court and the Defence, but only a list
and not the exhibits themselves. 23
The Defence sought a re-trial as a remedy for the Prosecution’s fail-
ure to disclose exhibits prior to trial. 24 The Defence argued in two parts.
The first part relied on the reasoning set out in a decision in Krajišnik and
Plavšić, delivered after the closure of arguments in the Krstić trial. 25 That
decision held that Rule 65ter(E) obliged the Prosecution to disclose copies
of exhibits to the Defence prior to trial. 26 The second part of the Defence
submission relied upon an amendment to Rule 65ter(E), which was adopt-
ed by the Judges of the Tribunal on 13 December 2001. 27 That amendment
altered the terms of Rule 65ter(E) so as to explicitly require the Prosecu-
tion to provide to the Defence copies of exhibits listed in pre-trial disclo-
18
Ibid.
19
Krstić appeal, para. 154, see above note 15.
20
Ibid.
21
Ibid., para. 155.
22
Ibid., para. 156.
23
ICTY Rules, rule 65 ter E(v), see above note 17.
24
25
Ibid., para. 157.
26
27
Ibid., para. 158.

sure. 28 The Defence argued that this subsequent amendment demonstrated

that the decision in Krajišnik and Plavšić was adopted by the entire Tribu-
nal. 29 In contrast to the finding in the Krstić pre-trial conference, the Trial
Chamber in Krajišnik and Plavšić held that the only way in which the De-
fence can properly prepare for trial is by having notice in advance of the
materials on which the Prosecution intends to rely, including exhibits. 30
So in Krajišnik and Plavšić, the Defence argued that, by not disclos-
ing the documents prior to trial, the Prosecution placed the Defence in a
position in which it was not able to properly prepare for trial; and it was
this fact that would likely lead to a violation of the principle of equality of
arms. 31 The Trial Chamber agreed and held that Rule 65ter(E)(iii) required
the Prosecution to disclose the actual exhibits appearing in the list, irre-
spective of any reciprocal pre-trial disclosure of exhibits by the Defence
under Rule 67. 32 The Trial Chamber in Krajišnik and Plavšić reasoned that,
since Rule 65ter(E)(iii) referred to possible objections by the Defence to
the authenticity of the exhibits, the Defence would need to have access to
those exhibits in order to assess their authenticity. 33 The subsequent
amendment of the Rule adopted this approach. 34
At issue in Krstić was whether the amendment to Rule 65ter reflect-
ed a consensus as to the proper interpretation of the former Rule, and
whether the Trial Chamber in Krajišnik and Plavšić accurately described
that interpretation. 35 The Appeals Chamber rejected the argument by the
Defence that the amendment to Rule 65ter(E) bound the Appeals Chamber
to adopt the interpretation submitted by the Defence. 36 The Appeals Cham-
ber said that it was common for the ICTY Rules to be amended from time
to time where those Rules are shown through practice to require clarifica-
tion or modification. 37 At most, the amendment of the Rule might cast light
on the ambiguity of the former formulation of the Rule, but it did not nec-
28
Ibid.
29
Ibid.
30
Ibid., para. 159.
31
Ibid.
32
Ibid.
33
Ibid., para. 160.
34
Ibid., para. 161.
35
Ibid.
36
Ibid., para. 162.
37
Ibid.

essarily assist in the interpretation of it. 38 The new Rule 65ter(E) required
the Prosecution to provide the Defence with access to copies of the Prose-
cution’s exhibits prior to trial. 39 Before the amendment, however, the actual
scope of the Rule was open to interpretation, as shown by the contrasting
decisions of the Krstić pre-trial conference and of the Trial Chamber in
Krajišnik and Plavšić. 40 The text of the former Rule 65ter(E) did not ex-
pressly require exhibits themselves to be disclosed but referred only to
them being ‘listed’, suggesting that Rule 65ter(E) was not a means by
which the disclosure of exhibits could be secured. 41 The subsequent
amendment to the Rules suggested, however, that the judges of the Tribunal
recognized that this practice might lead both the Defence and the Prosecu-
tion into difficulties when it comes to contesting the authenticity of exhib-
its. 42 Where the parties contested exhibits, delays to the trial could occur
while adjournments are granted in order to permit the parties to investigate
those exhibits as they are tendered. 43 As such, the subsequent amendment
may have been a matter relevant to the efficient management of the trial
itself, and not the result of any perceived unfairness to the Defence. 44
Furthermore, in Krstić, the Prosecutor had reached an agreement
with Defence Counsel – at the suggestion of the Trial Chamber – and estab-
lished a regime for the disclosure of certain evidence. 45 In agreeing to the
disclosure regime with the Defence, the Prosecution was, in fact, exceeding
its obligations under the Rules in as much as those obligations had been
determined pre-trial. 46 At trial, the Defence did not object to this agreement
and made no complaint regarding the disclosure regime. 47 On appeal, the
Prosecution argued that the Defence’s acceptance of this regime meant that
the Defence could not now claim that the regime was unfair. 48 The Appeals
Chamber did not agree that initial compliance by the Defence with the dis-
38
Ibid.
39
Ibid.
40
Ibid.
41
Ibid., para. 163.
42
Ibid.
43
Ibid.
44
Ibid., para. 164.
45
Ibid.
46
Ibid.
47
Ibid.
48
Ibid.

closure regime could be a basis for refusing to allow the Defence to argue
on appeal that it was unfair. 49 However, to succeed on this ground of appeal,
the Defence would have to establish that it was prevented from properly
investigating the authenticity of the exhibits by the Trial Chamber’s inter-
pretation of the Rule, and that it suffered prejudice as a result. 50 The De-
fence did not establish any prejudice. On the contrary, the Trial Chamber
did permit adjournments which allowed the Defence the opportunity to
contest the authenticity of various exhibits tendered by the Prosecution.
The Appeals Chamber accordingly dismissed this ground of appeal.
During 1999 and 2000, there was an in-built tension in the ICTY
Rules of Procedure and Evidence concerning disclosure. If the Defence
invoked Rule 66(B), and sought inspection of exhibits and other real evi-
dence in the custody and control of the Prosecutor and on which the Prose-
cutor would seek to rely at trial, the Prosecution could then invoke the
same right against the Defence under Rule 67(C). The Defence often did
not want to have to disclose its own documentary evidence before trial. If
the truth were told, I think it was regularly the case that the Defence were
unable to make disclosure of their own documents before the beginning of
trial because they did not know what documents they would be seeking to
rely on. This decision by the Appeals Chamber in Krstić centred around
disclosure rights. It was technically absolutely correct in that you could not,
at that time, circumvent reciprocal discovery rights by relying on rules
around pre-trial preparation. That said, a fundamental internationally rec-
ognized right in any criminal trial, at the time of Krstić, was for an accused
person “to be informed promptly, in a language which he understands and
in detail, of the nature and cause of the accusation against him”. 51
The Appeals Chamber held that there was no impropriety by the
Prosecution, as they had simply applied the ICTY Rules as they then exist-
ed. But, arguably, for Krstić to know the case against him promptly and in
detail, all exhibits should have been disclosed prior to trial and not piece-
meal as the case went along. The potential loss of reciprocal discovery was
49
Ibid., para. 165.
50
Ibid.
51
European Convention on Human Rights, 3 September 1953, Article 6(3)(a) (emphasis added)
(https://www.legal-tools.org/doc/8267cb). See also International Covenant on Civil and Po-
litical Rights, 23 March 1976, Article 14(3) (https://www.legal-tools.org/doc/2838f3); Amer-
ican Convention on Human Rights, 18 July 1978, Article 8(2)(b) (https://www.legal-
tools.org/doc/1152cf).

tactically significant for the Prosecution, but the decision not to disclose
exhibits to the Defence led to this rather unfortunate result of prima facie
unfairness, even though the Defence could not show any prejudice.
During the presentation of the Defence’s case at trial, the Prosecution
introduced taped evidence that was played to Krstić during his cross-
examination. 52 The existence of the taped evidence had not been disclosed
to the Defence until after the closure of both the Prosecution’s case and the
evidence-in-chief of the accused, even though the Prosecution had been in
possession of it for some time. 53 The Defence had, however, been aware of
the contents of the tape prior to its introduction to the Trial Chamber, and
had not objected to it being played at the time. 54 On appeal, the Defence
submitted that a new trial should be ordered for two reasons: the alleged
impossibility of the Trial Chamber ignoring the contents of the tape; and
the Prosecution’s employment of so-called ‘sharp’ trial tactics. 55
The contents of the tape, if true, were devastating for Krstić:
Intercepted and recorded on August 2 1995, it appears to refer
to what action should be taken against Bosnian men who fled
the massacre and were caught in the hills around Srebrenica.
Krstić: Are you working down there?
Obrenovic: We are working, indeed.
K: Good.
O: There are still a few, [they] got snared ...
K: Yeah.
O: ... either by guns or mines.
K: Kill all in turn. Fuck their mothers!
O: Everything is going according to plan.
K: Don't leave a single one alive!
O: What?
K: Do not leave anyone alive!
O: Everything is going according to plan. Everything. 56
52
53
Ibid.
54
Ibid.
55
Ibid., para. 168.
56
The Guardian, “Serb major denies Bosnian genocide”, 19 April 2001.

The Defence argued that, once the tape had been played to the Trial
Chamber, it became impossible for the Trial Chamber to ignore its contents
when deciding on the guilt and sentence of the accused, even though the
Trial Chamber had excluded it from evidence. 57 The Appeals Chamber did
not accept this argument. The Appeals Chamber stated that the role of
Judges as arbiters of both fact and law was essential to the basic function-
ing of the Tribunal. 58 Judges were frequently required to disregard evi-
dence from their deliberations, not only as an incident to their role as Judg-
es but also as an acknowledged part of their judicial function in assessing
the admissibility of evidence at trial. 59 The Defence had shown neither the
existence of any prejudice resulting from the playing of the tape nor that
the contents of the tape were taken into account or relied upon by the Trial
Chamber in arriving at its conclusions. 60 There were no grounds to support
the Defence’s submission that the playing of the tape influenced the Judges,
and therefore no re-trial was warranted. 61
The Defence argued that the manner in which the tape was used con-
stituted a ‘sharp’ trial tactic by the Prosecution and that the Appeals Cham-
ber should deter future prosecutorial misconduct by granting the Defence a
re-trial. 62 The Prosecution defended its conduct by arguing that there was
no directly applicable Rule prohibiting parties from introducing evidence in
the manner described. 63 The Defence suggested that the Prosecution delib-
erately declined to disclose the tape as an exhibit, deciding instead for tac-
tical reasons to conceal it for use in cross-examination “so that the defence
would not have an opportunity to explain it”. 64 The Decision of the Trial
Chamber to exclude the evidence, together with the nature of the evidence
in question and the amount of time in which the Prosecution possessed it,
supported the Defence’s submission. 65 There appeared to be sufficient
grounds in the circumstances to question the propriety of the Prosecution as
57
58
Ibid., para. 170.
59
Ibid.
60
Ibid., para. 171.
61
Ibid.
62
Ibid., para. 172.
63
Ibid.
64
Ibid., para. 173.
65
Ibid., para. 174.

regards the disclosure of this evidence. 66 The Appeals Chamber did not ac-
cept that a re-trial was necessary but instead concluded that where counsel
had engaged in such misconduct, the appropriate sanctions were provided
by Rule 46 (Misconduct of Counsel). 67 So here the Appeals Chamber re-
garded this disclosure decision by the Prosecution as professional miscon-
duct – potentially a lack of integrity or dishonesty.
At the time, I did not understand the decision of the OTP not to rely
on this evidence in its case-in-chief because it was potentially powerful
evidence. Also, as a general rule in English law, all evidence on which the
Prosecution intends to rely on as probative of guilt should be called before
the close of their own case. 68 Subject to a number of limited exceptions, the
Prosecution cannot call new evidence after the start of the Defence case. 69
So for me, at the time, the decision by the OTP to introduce this evidence
for the first time in the accused’s cross-examination by the OTP was ill-
judged. I recall it went down badly with the Trial Chamber judges too and
there was a strong sense at the time that they were disappointed by the
conduct of the OTP. Since the evidence was excluded by the judges, it lost
any value it might have had. On appeal, Krstić was found not to have gen-
ocidal intent. To this day, I wonder had we adduced this evidence in the
normal fashion, in our own case, whether that outcome would have been
different. We will never know.
The last issue I will address from the Krstić appeal was an alleged
violation of Rule 68 of the ICTY Rules by the Prosecution. 70 I suspect Rule
68 was one of the most oft-quoted of the Rules of Procedure and Evidence.
This Rule required the Prosecution to disclose to the Defence any material
which, in the actual knowledge of the Prosecutor, suggested the innocence
or mitigated the guilt of the accused or affected the credibility of Prosecu-
tion’s evidence. So, the obligation to disclose exculpatory evidence to the
Defence. This obligation goes to the heart of what decency means to a
prosecutor because, of course, this obligation requires a prosecutor to be
like a minister of justice and to ensure that the process of prosecution is a
fair one, whereby the accused receives information known to the prosecu-
66
Ibid.
67
Ibid.
68
United Kingdom, Court of Appeal, R. v. Rice, Judgment, 29 January 1963, [1963] 1 QB 857.
69
David Ormerod and David Perry, Blackstone’s Criminal Practice, Oxford University Press,
2019, pp. 2580–2585.
70

tor which undermines the prosecutor’s case or assists the accused’s defence.
Undoubtedly, in large complex international cases, it was not always clear
what was exculpatory and what was not because it was not always apparent
what defence or defences the accused was running. Defences often devel-
oped throughout a case. And I do not in any way, infer criticism of defence
counsel for this uncertainty. Having done some international defence work
myself, it was often hard to simply encapsulate what the defence was going
to be and what constituted all the evidence which would be helpful to the
client and was in the prosecutor’s possession. So, the disclosure of exculpa-
tory material, pursuant to Rule 68, led to many sleepless nights for prose-
cutors. It often provided for dramatic court encounters where such material
was discovered late on in a trial and then disclosed to the defence, who
would understandably shout foul and ask for sanctions to be applied to the
prosecutor. Judges of the international courts, I think, became equally frus-
trated by the application of this Rule and the procedural mishaps that oc-
curred around it.
In the Krstić case, the Defence argued that the Prosecution violated
its disclosure obligations under Rule 68 by: failing to disclose a number of
witness statements containing exculpatory material; failing to disclose ex-
culpatory material amongst other evidence without identifying that material
as exculpatory; preventing the Defence from taking copies of exculpatory
materials, and instead requiring the Defence to view the materials at the
offices of the Prosecution; and failing to make two disclosures as soon as
practicable. 71
So, the Defence argued that a number of interviews with witnesses,
conducted by the Prosecution prior to the Trial Chamber delivering the
Judgement, contained exculpatory evidence and that the failure of the Pros-
ecution to disclose that material at that time constituted a breach of Rule
68. 72 The Prosecution conceded, at the time, that of the ten witness state-
ments filed by the Defence in its first Rule 115 Motion, six “fall within the
ambit of Rule 68”, but argued that the other four statements did not fall
within the Rule, and that, in any case, the Defence had been unable to es-
tablish prejudice resulting from the failure to disclose. 73
71
Ibid.
72
Ibid., para. 177.
73
Ibid.

The Appeals Chamber recognized that the jurisprudence of the Tri-

bunal mirrored the text of Rule 68 itself, and established that material fell
within the ambit of Rule 68 if it tended to suggest the innocence or mitigate
the guilt of the accused, or affected the credibility of Prosecution evi-
dence. 74 The Tribunal held that material would affect the credibility of the
Prosecution’s evidence if it undermined the case presented by the Prosecu-
tion at trial; 75 material to be disclosed under Rule 68 was not restricted to
material which is in a form which would be admissible in evidence. 76 Ra-
ther, it included all information which in any way tended to suggest the in-
nocence or mitigate the guilt of an accused or might affect the credibility of
Prosecution evidence, as well as material which might put an accused on
notice that such material existed. 77 The Prosecution argued that any inter-
pretation of Rule 68 should draw upon the practice of domestic jurisdic-
tions with comparable disclosure regimes. 78 It relied heavily upon cases
from the United States in arguing that, for a document to fall within Rule
68, it must be exculpatory “on its face”. 79 The Prosecution was seeking on
appeal to restrict the application of Rule 68. The Appeals Chamber rightly
rejected this position and found the meaning and purpose of Rule 68 to be
sufficiently clear, and it dismissed consideration of domestic provisions. 80
The disclosure of exculpatory material was fundamental to the fairness of
proceedings before the Tribunal, and considerations of fairness were the
overriding factor in any determination of whether the governing Rule had
been breached. 81
The Appeals Chamber was also aware of the obligation and burden
placed on the Prosecution, both in terms of the volume of material to be
disclosed, and the effort expended in determining whether the material is
exculpatory. But it also recognized the pre-eminent importance of disclos-
74
Ibid., para. 178.
75
Ibid.
76
Ibid.
77
Ibid.
78
Ibid., para. 179.
79
Ibid.
80
Ibid.
81
Ibid., para. 180.

ing exculpatory evidence to the Defence, 82 so it would be against the inter-

ests of a fair trial to limit the scope of Rule 68. 83
The disputed evidence related to the statements of four protected
witnesses submitted on appeal as additional evidence pursuant to Rule 115
of the ICTY Rules. 84 The Defence claimed that the evidence in the state-
ments revealed a parallel chain of command of which Krstić was not a part
and that those responsible for the mass killings were bypassing him in the
chain of command. Moreover, the Defence claimed that they demonstrated
Krstić had not had control of forces committing the massacres in and
around Srebrenica and that documents showing he was a commander on a
particular day did not mean he became commander on that day. 85 Interest-
ingly, the Appeals Chamber found none of this potentially exculpatory evi-
dence had any effect on the trial verdict at all, however, it still held to the
extent that they had found that the Prosecution had failed in respect of its
obligations under the ICTY Rules, those breaches fell to be addressed by
the appropriate remedies, namely Rule 46 (Misconduct of Counsel) and
Rule 68bis (Failure to Comply with Disclosure Obligations). 86 Where al-
leged breaches had no effect on the outcome of the trial, I question whether
they justify a sanction. It seems questionable why should you be punished
for lack of decency when the basis is an unsubstantiated allegation. That
said, my position on Rule 68 disclosure was always if in doubt disclose it,
because the consequences and fall-out from non-disclosure were often out
all proportion to the weight and importance to the Defence of the evidence
being disclosed late.
The Defence also submitted that some Rule 68 disclosures made dur-
ing trial were buried beneath other material provided at the time, and that
the failure of the Prosecution to identify the disclosed material as being
disclosed under Rule 68 breached the spirit and letter of that Rule. 87 In re-
sponse, the Prosecution argued that there was no specific requirement
obliging it to indicate the provision in the Rules whereby disclosure of
documents occurred, or to identify the specific material disclosed as excul-
82
Ibid.
83
Ibid.
84
Ibid., para. 182.
85
86
Ibid.
87
Ibid., para. 189.

patory. 88 The Appeals Chamber agreed with the Prosecution that Rule 68
did not require the Prosecution to identify the material being disclosed to
the Defence as exculpatory. 89 The jurisprudence of the Tribunal showed
that, while some Trial Chambers had recognized that it would be fairer for
the Prosecution to do so, there was no prima facie requirement, absent an
order of the Trial Chamber to that effect, that it must do so. 90 However, the
fact that there was no prima facie obligation on the Prosecution to identify
the disclosed Rule 68 material as exculpatory did not prevent the accused
from arguing, as a ground of appeal, that he suffered prejudice as a result of
the Prosecution’s failure to do so. 91 Here the Appeals Chamber had not
been persuaded by the Defence that the failure of the Prosecution to identi-
fy exculpatory evidence it disclosed resulted in any prejudice to the De-
fence. 92 They found the Defence had both sufficient time in which to ana-
lyse the material, and the opportunity to challenge it during cross-
examination. 93 This ground of appeal was dismissed. I confess I disagreed
with this finding. My feeling was, while there was no obligation to identify
specific sentences or paragraphs in documents which were potentially ex-
culpatory, at least identifying single documents or groups of documents
which were potentially exculpatory seemed to me to be the minimum that
should be expected of the Prosecution. And I still believe that today.
Next, the Appeals Chamber had to consider whether Rule 68 required
the Prosecution to allow the Defence to take copies of exculpatory materi-
al. 94 The Defence submitted that, in only being permitted to view copies of
exculpatory evidence in the Prosecution’s office, and being refused copies
of the materials, the Prosecution breached Rule 68, as well as its obligation
to act as a ‘minister of justice’ – so in effect with fairness and decency. 95
On a plain reading of Rule 68, the Prosecution was found to be merely
obliged to disclose the existence of Rule 68 material, not to provide the
actual material itself. 96 The Appeals Chamber found if the Defence had
88
Ibid.
89
Ibid., para. 190.
90
Ibid.
91
Ibid., para. 191.
92
Ibid., para. 192.
93
Ibid.
94
Ibid., para. 194.
95
Ibid.
96
Ibid., para. 195.

demonstrated that the preparation of its case had been prejudiced by only
being able to view the Rule 68 material held by the Prosecutor, then it
should have brought this prejudice to the attention of the Trial Chamber. 97
The Prosecution did disclose the existence of this material, and the Defence
did not complain to the Trial Chamber, at the time, it was unable to make
copies. 98 The Defence did not persuade the Appeals Chamber that it did
indeed suffer any prejudice during the trial, and so this ground of appeal
was dismissed. 99 Whatever the strict reading of the rule, one might question
why the Prosecution would not provide copies of potentially exculpatory
documents to the Defence to avoid later dispute? What advantage did they
gain in this situation by not providing copies? I can see situations where the
provider of a document, such as a government or international organization,
might not wish copies of sensitive documents to be copied and distributed
beyond the Prosecution, but I cannot see any advantage for the Prosecution
here in not providing copies of Rule 68 material to the Defence.
Lastly, I want to consider the appellate finding in the Krstić appeal
on whether two disclosures were made ‘as soon as practicable’. Here the
Defence submitted that certain disclosures were not made ‘as soon as prac-
ticable’, as required by Rule 68. 100 For example, disclosures of 25 June
2000 occurred over two years after the Prosecution came into possession of
the evidence, and more than three months after the trial had begun. 101 Dis-
closures of 5 March 2001 occurred over three months after the Prosecution
came into possession of the evidence. 102 The Defence also alleged that the
Prosecution deliberately withheld evidence in order eventually to avail it-
self of the reciprocal discovery mechanism of Rules 67(B) and 67(C). 103
I was aware in the year 2000 of the amount of material that was col-
lectively in possession of the OTP, and the time it took to translate that ma-
terial from Bosnian and Serbian into English and French. And then to study
it and decide its importance, including whether it was exculpatory. The Ap-
peals Chamber was sympathetic to the argument of the Prosecution that, in
most instances, material requires processing, translation, analysis and iden-
97
Ibid.
98
Ibid.
99
Ibid.
100
Ibid., para. 196.
101
Ibid.
102
Ibid.
103
Ibid.

tification as exculpatory material. 104 They rightly found the Prosecution

could not be expected to disclose material which – despite its best efforts –
it had not been able to review and assess. 105 Nevertheless, the Prosecution
did take an inordinate amount of time before disclosing material in Krstić,
and had failed to provide a satisfactory explanation for the delay. 106 The
Appeals Chamber found that the Prosecution had breached Rule 68 and
that its submission that the Defence had enough time to consider the mate-
rial, while allaying allegations of prejudice to the Defence’s case, did not
contradict the allegation that the Prosecution breached Rule 68 by not
providing the material as soon as practicable. 107 The Defence could not
demonstrate prejudice nor could they provide sufficient evidence to the
Appeals Chamber for it to determine whether late disclosure was a trial tac-
tic. 108 Late disclosure of exculpatory material as a deliberate trial tactic to
force the Defence into reciprocal disclosure would have been dishonest and
indecent.
The Appeals Chamber did find that the disclosures of 25 June 2000
and 5 March 2001 were not made as soon as practicable, and that the Pros-
ecution had, as a result, breached Rule 68. 109 Again, a pre-requisite for the
remedy sought on appeal for breaches of Rule 68 was proof of consequen-
tial prejudice to the Defence. 110 The Defence had not established any such
prejudice from the delayed disclosures by the Prosecution, so the remedy
sought was not justified. 111 The Appeals Chamber did again find that the
Prosecution did not meet its obligations under the Rules. And the conse-
quences again were governed by Rule 46 (Misconduct of Counsel) and
Rule 68bis (Failure to Comply with Disclosure Obligations). Again, I do
question potential sanctions for technical breaches of Rule 68 when no
prejudice was suffered. I suppose such findings did have the result of en-
couraging prosecutors to be straightforward about these issues in other cas-
es in order to avoid these kinds of appeals.
104
Ibid., para. 197.
105
Ibid.
106
Ibid.
107
Ibid.
108
Ibid., para.198.
109
Ibid.
110
Ibid., para.199.
111
Ibid.

10.3. The Prosecutor v. Nikola Šainović, Dragoljub Ojdanić, Nebojša

Pavković, Vladimir Lazarević, Sreten Lukić and Milan Milutinović
Moving to another case which concerned alleged violations of an accused’s
rights to a fair trial, this chapter turns next to the case The Prosecutor v.
Nikola Šainović. In this case, it was the Presiding Judge accused of mis-
conduct and bias. The trial judge concerned was a decent man of integrity
with extensive judicial experience prior to the ICTY.
On 26 February 2009, Sreten Lukić had been convicted at trial of
crimes against humanity and violations of the laws or customs of war. 112
The Trial Chamber had found that in 1999 there was a broad campaign of
violence directed against the Kosovo Albanian civilian population in Koso-
vo conducted by the army and Interior Ministry police forces (‘MUP’), un-
der the control of the Federal Republic of Yugoslavia and Serbian authori-
ties, who were responsible for mass expulsions of Kosovo Albanian civil-
ians from their homes, as well as incidents of killing, sexual assault, and
the intentional destruction of mosques. 113 The Trial Chamber found that
these crimes were committed in the execution of a joint criminal enterprise,
the purpose of which was to “use violence and terror to force a significant
number of Kosovo Albanians from their homes and across the borders, in
order for the state authorities to maintain control over Kosovo”. 114 Lukić,
as Head of the Ministry of Internal Affairs in Kosovo, was part of this joint
criminal enterprise and sentenced to 22 years imprisonment. 115
During his appeal, Lukić argued that on several occasions the Trial
Chamber exhibited “personal bias” against him, thus violating his right to
be heard by an independent and impartial tribunal. 116 In support of his as-
sertion, Lukić noted that the Presiding Judge, Judge Iain Bonomy, was a
judge in the trial of the former President of Yugoslavia, Slobodan Mi-
lošević, which shared many witnesses and subject-matter with his case. 117
Lukić also referred to several remarks made by Judge Bonomy which, in
112
ICTY, The Prosecutor v. Šainović et al., Trial Chamber, Judgement, 26 February 2009, IT-
05-87-T, vol. 3, para. 1138 (‘Šainović et al. case’) (https://www.legal-tools.org/doc/d79e85).
113
Šainović et al. case, Judgement Summary, 26 February 2009, p. 4 (https://www.legal-
tools.org/doc/c75af2).
114
Ibid., p. 12.
115
Šainović et al. case, para. 1212, see above note 112.
116
Šainović et al. case, Appeals Chamber, Judgement, 23 January 2014, IT-05-87-A, para. 176
(https://www.legal-tools.org/doc/81ac8c).
117
Ibid.

Lukić’s view, showed “disparaging treatment” and argued that the pressure
of the Tribunal’s completion strategy coupled with Judge Bonomy’s prior
work in advocating the speeding-up of trials in Scotland, might have been
the reason for such “prejudgement [or] bias”. 118 Lukić alleged that as a re-
sult of this bias: (i) he received a significantly higher sentence compared to
that of Ojdanić and Lazarević, and was sentenced to 22 years of imprison-
ment along with other co-accused who, unlike him, did not have circum-
stances in mitigation; 119 (ii) his voluntary surrender, unlike that of Laz-
arević, was not regarded as a mitigating factor; 120 (iii) Milutinović, who
had attended the same meetings and had a similar level of knowledge of the
crimes, was acquitted; 121 (iv) motions filed by Lukić for admission of doc-
uments from the bar table were dismissed by the Trial Chamber; 122 and (v)
the evidence of defence witnesses was almost entirely disregarded in the
Trial Judgement, thus suggesting that Lukić’s Defence had not been con-
sidered. 123
In response, the Prosecution submitted that Lukić had failed to
demonstrate an appearance of bias and that the examples he alleged show,
instead, the efforts of the Presiding Judge to ensure the fair and expeditious
conduct of the proceedings. 124 The Prosecution argued that the Trial Cham-
ber correctly distinguished the criminal responsibility of the individual co-
accused, had valid reasons for denying the admission of certain evidence
tendered by Lukić and provided detailed conclusions on the credibility of
the defence witnesses. 125
Lukić replied that the combination of the Trial Judgement’s “openly
hostile disposition” towards him, the difference in treatment he received
compared to that received by Milutinović, Lazarević and Ojdanić, and the
impugned remarks of the Presiding Judge established bias that invalidated
the Trial Judgement. 126
118
Ibid.
119
Ibid.
120
Ibid.
121
Ibid.
122
Ibid.
123
Ibid.
124
Ibid., para. 177.
125
Ibid.
126
Ibid., para.178.

The Appeals Chamber in examining all the arguments in the case,

naturally reiterated that the right to be tried before an independent and im-
partial tribunal was an integral component of the right to a fair trial and
was enshrined in Article 21 of the ICTY Statute. 127 This fundamental guar-
antee was also reflected in Article 13 of the Statute, which provided that the
Judges of the Tribunal “shall be persons of high moral character, impartiali-
ty and integrity”. It is further reinforced by Rule 15(A) of the ICTY Rules,
stipulating that “[a] Judge may not sit on a trial or appeal in any case in
which the Judge has a personal interest or concerning which the Judge has
or has had any association which might affect his or her impartiality”. 128
In the Furundžija Appeals Judgement, upon reviewing the interpreta-
tion of the impartiality requirement in a number of national legal systems
and under the ECHR, the Appeals Chamber enunciated the principles that
should guide the interpretation and application of this requirement under
the Statute as follows:
1. A Judge is not impartial if it is shown that actual bias ex-
ists.
2. There is an unacceptable appearance of bias if:
i) a Judge is a party to the case, or has a financial or pro-
prietary interest in the outcome of a case, or if the
Judge’s decision will lead to the promotion of a cause
in which he or she is involved, together with one of the
parties. Under these circumstances, a Judge’s disquali-
fication from the case is automatic; or
ii) the circumstances would lead a reasonable observer,
properly informed, to reasonably apprehend bias. With
regard to the ‘reasonable observer’ standard, the Ap-
peals Chamber has held that a “reasonable person must
be an informed person, with knowledge of all the rele-
vant circumstances, including the traditions of integrity
and impartiality that form a part of the background and
apprised also of the fact that impartiality is one of the
duties that Judges swear to uphold. 129
The Appeals Chamber, therefore, had to determine whether the reac-
tion of such a hypothetical fair-minded observer would be that a Judge
127
Ibid., para. 179.
128
Ibid.
129

might not bring an impartial and unprejudiced mind to the issues arising in
the case. 130 The Appeals Chamber emphasized that Judges enjoy a pre-
sumption of impartiality and that there is a high threshold to reach in order
to rebut that presumption. 131 In this respect, the Appeals Chamber had held
that:
in the absence of evidence to the contrary, it must be assumed
that the Judges of the Tribunal can disabuse their minds of any
irrelevant personal beliefs or predispositions. 132 It is for the
Appellant to adduce sufficient evidence to satisfy the Appeals
Chamber that [the] Judge […] was not impartial in his case.
There is a high threshold to reach in order to rebut the pre-
sumption of impartiality. 133 As has been stated, disqualifica-
tion is only made out by showing that there is a reasonable
apprehension of bias by reason of prejudgement, and this must
be firmly established. 134
The Appeals Chamber pointed out that Lukić did not raise the ques-
tion of Judge Bonomy’s impartiality before the Trial Chamber. 135 The Ap-
peals Chamber stated such an omission could constitute waiver of the right
to raise the matter on appeal, but it had been the practice of the Appeals
Chamber to treat the issue of bias as a special circumstance allowing it to
address the merits of the challenge despite the waiver. 136 So the Appeals
Chamber considered the merits of Lukić’s challenges first, addressing
Judge Bonomy’s previous involvement in the Milošević case.
The Appeals Chamber noted that, following the resignation of Judge
Richard May and pursuant to an order of the President of the Tribunal, on
10 June 2004 Judge Bonomy was assigned to Trial Chamber III, hearing
the case of Milošević. 137 He performed the functions of a trial judge in that
case until 14 March 2006 when, following the death of Milošević, the pro-
ceedings were terminated. 138 Lukić alleged that the Milošević case shared
130
Ibid., para. 181.
131
Ibid.
132
Ibid.
133
Ibid.
134
Ibid., citing ICTY, Prosecutor v. Anto Furundžija, Appeals Chamber, Judgement, 21 July
2000, IT-95-17/1-A (https://www.legal-tools.org/doc/660d3f/).
135
Ibid., para. 182.
136
Ibid.
137
Ibid., para. 183.
138
Ibid.

many common witnesses with his case. 139 However, he had failed to pre-
sent any arguments explaining how Judge Bonomy’s involvement in the
Milošević proceedings would lead a reasonable and informed observer to
apprehend bias. 140 The Appeals Chamber pointed out that the Judges of the
Tribunal often become involved in several trials which, by their very nature,
concern issues that overlap and may be presented with witness testimony
that was already admitted in another case. 141 The Appeals Chamber as-
sumed, in the absence of evidence to the contrary that, by virtue of their
training and experience, Judges will rule fairly on the issues before them,
relying solely and exclusively on the evidence adduced in the particular
case. 142 Lukić’s generic contention falls short of rebutting this presumption
of impartiality. His submission was therefore dismissed. 143
Second, the Appeals Chamber addressed Judge Bonomy’s prior work
in advocating the speeding-up of trials in Scotland and the ICTY’s comple-
tion strategy. Lukić submitted that Judge Bonomy “was known in Scotland
for his work in advocating the speeding-up of the trial process”. 144 He re-
ferred in this respect to a 142-page document entitled “Improving Practice:
2002 Review of the Practices and Procedure of the High Court of Justici-
ary” authored by Judge Bonomy. 145 Again, however, Lukić did not substan-
tiate his contention nor provide any precise references to information in the
document that would support the allegation of apprehension of bias. 146 He
did not specify how the document was relevant to the work of the Tribunal
and, in particular, to his case. 147 So the Appeals Chamber dismissed this
argument on appeal too. 148
Regarding Lukić’s first appeal point on bias, candidly, I always had
concerns about the judges’ involvement in trials with overlapping factual
bases. Not because such involvement went to their decency or integrity.
Judges are credited with being able to do the mental gymnastics required to
139
Ibid., para. 184.
140
Ibid.
141
Ibid.
142
Ibid.
143
Ibid.
144
Ibid. para. 185.
145
Ibid.
146
Ibid.
147
Ibid.
148
Ibid.

always be impartial and not predisposed, unless strong evidence demon-

strates otherwise, but they are also human and being human sometimes
mean these higher qualities attributed to you are not always infallible. IC-
TY cases were very long, indeed. Evidence was often heart-breaking and
painful. The facts of these cases rested deeply with all of us.
Lukić’s second point regarding Judge Bonomy’s work in Scotland on
speeding up the trial process was bogus, since prior work on more efficient
trials has nothing to do with fairness. 149 Most likely one of the reasons
Bonomy was put forward as a judge for the ICTY, at this particular time,
was exactly because he would make trials and appeals more efficient –
which, in fact, he did.
Lukić also argued that the pressure of the Tribunal’s completion
strategy was another factor contributing to the apprehension of bias. How-
ever, he again failed to substantiate his allegation, and the Appeals Cham-
ber refused to address it any further.
Lukić argued that statements made by Judge Bonomy during trial
had made his trial unfair. In scrutinizing these allegations, the Appeals
Chamber was needlessly cautious, emphasizing that when examining alle-
gations of apprehension of bias, extracts from transcripts had to be placed
in their proper context so that the intent of the Judge who made the im-
pugned remarks may be inferred. 150 Iain Bonomy was born in Motherwell
in Scotland. He started his legal career as a corporate solicitor later becom-
ing an advocate, then a Queen’s Counsel, and finally a judge. He was unu-
sual for a judge in that he lived not only fully in the law but also in the real
world. By experience of the world, he was and is a straightforward man
who spoke the truth bluntly in life and in trials.
Lukić argued that, during the cross-examination of Emin Kabashi,
Judge Bonomy made a remark “essentially curtailing vigorous cross-
examination by co-counsel for Appellant”. 151 In particular, Lukić chal-
lenged the following statement made by Judge Bonomy in relation to a
question put by Lukić’s co-counsel to Kabashi: “Perry Mason probably
once got somebody to break down and admit to that but let’s move on”. 152
In response, the Prosecution submitted that the Presiding Judge properly
149
Ibid. para. 186.
150
Ibid. para. 187.
151
Ibid. para. 188.
152
Ibid.

directed Lukić to proceed with another question. 153 The trial record indicat-
ed that, prior to the impugned remark, the Prosecution objected to the ques-
tion put to the witness by Lukić’s co-counsel and the Presiding Judge in-
tervened, inquiring into its relevance. A hypothetical fair-minded observer,
properly informed, would recognize that the Presiding Judge’s allegoric
remark was made in the context of an intervention, the purpose of which
was to ensure that the mode of the witness examination was effective. 154
Accordingly, the Appeals Chamber found that no appearance of bias had
been demonstrated in this case.
Lukić further claimed that on two occasions the Presiding Judge pre-
vented him “from attempting to make a record and be heard”. 155 Lukić re-
ferred to a statement of the Presiding Judge made on 14 February 2008:
JUDGE BONOMY: Mr. Lukic, sit down, please. Mr. Mija-
tovic can answer questions[.] 156
He also refers to the following exchange which took place on 4 March
2008:
JUDGE BONOMY: Sit down. You’re just interfering with the
cross-examination now. MR. IVETIC: I don’t believe so, Your
Honour. I think this is a very important point. JUDGE
BONOMY: Sit down. MR. IVETIC: And I want it on the rec-
ord. JUDGE BONOMY: Sit down and deal with it in re-
examination. 157
In response, the Prosecution argued that in both instances the inter-
vention of the Presiding Judge was appropriate as, first, he directed Lukić’s
lead counsel not to give evidence on behalf of the witness, and, second, he
overruled an unfounded objection by Lukić’s co-counsel. 158
As shown by the trial record, in the first instance, Lukić’s lead coun-
sel intervened when the Presiding Judge was seeking to elicit an answer
from Miroslav Mijatovic concerning the reporting obligations of the Koso-
vo Secretariats of the Interior. A reading of the relevant section of the tran-
script showed that not only was Lukić’s lead counsel not prevented from
153
Ibid.
154
Ibid., para. 189.
155
Ibid., para. 190.
156
Ibid.
157
Ibid.
158
Ibid., para. 191.

having his objection recorded, but he engaged in an extensive discussion

with the Presiding Judge, who invited counsel to address any possible con-
cerns he may have during the re-examination of the witness. 159 Lukić does
not claim that he was subsequently prevented from effectively re-
examining the witnesses in question. In the second instance, Lukić’s co-
counsel attempted to intervene during the cross-examination of Danica
Marinković by the Prosecution. The Presiding Judge instructed him to re-
frain from doing so and to pursue any clarification he deemed necessary
during the re-examination of the witness. 160
Thus, having considered Judge Bonomy’s remarks in their proper
context, the Appeals Chamber found that Lukić had failed to demonstrate
that they would lead a reasonable and well-informed observer to apprehend
bias. 161
During the direct examination of Ljubivoje Joksić, Lukić asserted
that the Presiding Judge made a statement “essentially curtailing consulta-
tions” between Lukić and his counsel, and constituting “a disparaging re-
mark about both during a critical point of the proceedings”. 162 In response,
the Prosecution submitted that the Presiding Judge correctly instructed that
only one person speak at a time, and that the impugned remark does not
show any improper restriction upon communication between Lukić and his
counsel. 163
The impugned remark reads as follows: “I’d prefer just to hear from
the puppet rather than the puppet master as well. One person at a time will
be sufficient for our purposes”. 164 When the court session resumed, the
Presiding Judge made the following clarification:
In reviewing the transcript […] I was reminded of a hurried
intervention when accused and counsel appeared to be speak-
ing loudly at the same time when I made reference to puppetry.
[I]t concerned me when I re-read it that it could be regarded as
a general comment and not confined to that particular occa-
sion, so [for the] avoidance of any doubt whatsoever, I want to
say one thing. I hope, indeed I think, that counsel know that I
159
Ibid., para. 192.
160
Ibid.
161
Ibid.
162
Ibid., para. 193.
163
Ibid.
164
Ibid., para. 194.

appreciate the responsible way in which the proceedings have

been handled in general by counsel and that the comment was
one made in the heat of the moment. 165
It is clear from the record that the impugned remark addressed a par-
ticular situation where the accused and his counsel were speaking loudly at
the same time. 166 The Appeals Chamber considered that the impugned re-
mark reflected the immediate reaction of Judge Bonomy to an unsatisfacto-
ry instance during the trial. 167 As illustrated above, shortly after making the
impugned remark, Judge Bonomy clarified his statement to ensure that the
parties fully understood that it was an immediate reaction to a specific in-
cident and was not to be interpreted as a general comment regarding coun-
sel’s handling of the proceedings. 168 In these circumstances, the Appeals
Chamber found that a reasonable and well-informed observer could not
apprehend any bias in Judge Bonomy’s statement. 169
In the hearing of 4 March 2008, Lukić asserted that the Presiding
Judge “attempt[ed] to prevent a record as to the serious complaints raised
about the rush of the trial” expressed in Lukić’s motion objecting to the
trial sitting schedule. 170 In response, the Prosecution submitted that the Pre-
siding Judge merely sought clarification as to whether Lukić intended to
withdraw a comment according to which he alleged that the Trial Chamber
viewed the trial as a formality and had already assumed Lukić’s guilt. The
Appeals Chamber considered that the Presiding Judge’s impugned state-
ment must be considered in its procedural context. The trial record shows
that, on 11 February 2008, Lukić submitted a motion objecting to the trial
sitting schedule and seeking an amendment thereof. 171 He stated, inter alia:
“Surely, the Trial Proceedings themselves are of more substantive value
than simply being a mere legal formality to be endured before a judgement
is rendered (particularly in light of the requirement of the presumption of
innocence)”. 172 The Trial Chamber found Lukić’s submission to be “un-
founded and impertinent” in suggesting that the Trial Chamber disregarded
165
Ibid., citing Ljubivoje Joksić, 8 February 2008, T. 21925.
166
Ibid., para. 195.
167
Ibid.
168
Ibid.
169
Ibid.
170
Ibid., para. 196.
171
Ibid., para. 197.
172
Ibid.

the presumption of innocence. 173 It considered that, pursuant to Rule 46(A)

of the Rules, Lukić’s assertion could constitute conduct that is offensive
and invited him to withdraw the relevant part of the motion. Lukić neither
complied with nor sought leave to appeal the decision of the Trial Chamber.
The matter was raised again by the Presiding Judge during the hearing of 4
March 2008, when he made the following impugned statement:
[I]n that decision on the 20th of February we drew attention to
a remark that had been made in the motion itself, which de-
pending perhaps on how you interpret it, others might say
perhaps not, might have constituted a comment that wasn’t
exactly appropriate. And we did indicate that you ought to
consider whether that comment should be withdrawn or re-
main. Now, there’s been no response from you to that. Do we
take it from that that you have made a deliberate decision to
take no action? 174
In response to the Presiding Judge’s impugned remark, Lukić clari-
fied that the submission in question “was not meant as a criticism […] or
[…] as an accusation”, and refused to proceed with its withdrawal. No fur-
ther action was undertaken by the Trial Chamber in this regard.
When considered in its proper context, it is clear that Judge Bono-
my’s impugned statement at the hearing of 4 March 2008 was aimed at
clarifying Lukić’s position as to whether he intended to withdraw the sub-
mission in question. Rather than preventing Lukić from raising his con-
cerns with respect to the pace of the trial, the trial record clearly shows that
the true intention of the Presiding Judge was to elucidate Lukić’s position
on the matter. In these circumstances, the Appeals Chamber was not con-
vinced that a reasonable and well-informed observer would apprehend any
bias as a result of Judge Bonomy’s statement. 175 Lukić’s argument was
dismissed. 176
In Closing Arguments, Lukić asserted that Judge Bonomy rejected
without consideration “the glaring misstatements/misrepresentations of ev-
idence” in the Prosecution’s Closing Brief, which he claimed were validly
brought to the attention of the Trial Chamber. 177 In response, the Prosecu-
173
Ibid.
174
Ibid.
175
Ibid., para. 198.
176
Ibid.
177
Ibid., para. 199.

tion submitted that the Presiding Judge’s reaction to the allegation of dis-
honesty made by Lukić’s co-counsel against the Prosecution during his
Closing Arguments was appropriate, in that inaccuracies in the Prosecu-
tion’s Closing Brief were not a sufficient basis for an accusation that the
Prosecution purposefully sought to mislead the Trial Chamber. 178
The impugned statement reads:
Mr. Ivetic, I’m not prepared to sit back any longer and listen
to allegations of lack of candour when there have been many
instances in this trial when the Lukic briefs have been less
than accurate without the allegation being made against you of
lack of candour. Do you consider that what you’re doing is an
appropriate way to be addressing us in regard to matters which
do not simply on the face of your assertion justify that
claim? 179
It is evident from the transcript that Judge Bonomy’s remark was
made in response to the following statement of Lukić’s co-counsel:
You cannot believe a word of what is contained in the [Prose-
cution’s] brief because they make a mockery of candour and
honesty in their citations. 180
Lukić’s co-counsel later recognized that “perhaps candour is a strong
word”, but maintained that the Trial Chamber should carefully examine the
evidence cited by the Prosecution. 181 The Presiding Judge responded as
follows:
[Y]our actual remarks were that the Prosecution submissions
make a mockery of candour and honesty, and that's just one of
a series of remarks that bear the interpretation that there is a
deliberate attempt on the part of the Prosecution to mislead the
Bench. Now, we recognise the highly charged atmosphere
which surrounds this stage in the proceedings; nevertheless,
we regret that you have not had the courtesy to recognise that
the language you've just used is not appropriate language for
counsel appearing in any Tribunal. At this late stage in the
proceedings, we choose to simply record that we do not accept
178
Ibid.
179
Ibid., para. 200.
180
Ibid.
181
Ibid.

that there is a basis for claiming that the Prosecution deliber-

ately set out to mislead the Bench. 182
Considering Judge Bonomy’s remark in its context, the Appeals
Chamber did not find that a reasonable and well-informed observer would
have apprehended bias on his part. The Presiding Judge did not suggest in
any way that the evidence cited by the Prosecution would not be subject to
scrutiny. Rather, he reproached Lukić’s co-counsel for using inappropriate
language, the legitimacy of which seems to have been recognized by the
counsel himself. The Appeals Chamber, therefore, dismissed Lukić’s argu-
ment. 183
10.4. Conclusion
So, what is the worth of all this.
You can see with the judicial examples in Lukić that, in reality, this
was a string of either false allegations or at best misperceptions framed as
allegations and designed to draw attention away from the fact that the ac-
cused had a poor defence to the facts of the case. But still, the Judge had to
be beyond any reproach whatsoever in order both to defend himself and
ensure the trial was truly fair.
In Krstić, the Prosecution took a very robust approach at trial to de-
fence lawyers, who I recall were honourable men largely inexperienced in
adversarial trials before international courts. Where the Appeals Chamber
found that prosecutorial conduct in the trial fell short, it generated needless
criticism in what was otherwise an extremely well prosecuted and led case
with absolutely overwhelming evidence.
Appropriate standards of professional and judicial conduct in interna-
tional proceedings have had little attention by academics and commentators.
One man who has taken a hard look at it, and written and spoken about it
extensively, is Sir Geoffrey Nice QC, Senior and Principal Prosecuting
Counsel at the ICTY and lead prosecutor on the Slobodan Milošević case,
he was confronted with a number of challenges to his integrity, decency
and sense of fairness while at the ICTY – in profoundly important cases.
He never shrunk from those clashes nor waivered in doing what was right.
He often found himself painfully isolated from colleagues in taking the
182
Ibid.
183
Ibid., para. 201.

right course. And that is very hard. In his book, Justice for All and How to
Achieve It, he wrote this about his time at the ICTY:
The way in which any country’s lawyers work can determine
the fairness of a trial quite as much as the law itself does. The
UK legal system historically depended for its integrity sub-
stantially on the independence of its barrister advocates – usu-
ally genuinely and completely independent practitioners –
who earned fees on a case-by case basis and whose only sale-
able asset were their reputations. They knew that one obvious
professional blunder or a breach of ethical standards could be
terminal for reputation and career. Whatever their internal in-
clinations they were normally pushed by powerful vectors to
behave honestly, honourably, openly and incompliance with
professional standards. They had too much to lose if they
didn’t. 184
Before coming to the ICTY in 1999, Geoffrey Nice had spent nearly
thirty years as an independent practitioner at the English bar. His reputation
came before him, and decency and fairness, for the reasons in the quoted
passage above, were in his bones. I know because, as a young lawyer, I
went to him for advice. The passage from his book succinctly demonstrates,
that in the end, whatever the law says, decency depends on the strength and
chosen direction of individuals. Most of us instinctively know what decen-
cy requires of us before the courts. There can be instances, certainly, where
it is not clear regarding the right thing to do, but I would submit that these
instances are rare indeed and that by and large, if there is uncertainty – say,
for example, in whether to disclose material to the defence or not – it is al-
ways preferable to disclose unless there are compelling reasons not to dis-
close that material. And, then, the court should be consulted.
I would add here, too, that it is a lot easier on yourself to be straight-
forward and honest in a case because then you do not have to constantly
keep reminding yourself of what you have most recently said or written.
Your relations with the other parties and the judges are based on the trust
and confidence that you are speaking candidly about the case, the evidence
and the law. You are under much less strain, and you live longer.
In international criminal trials, there has been an historic risk that the
nature of the cases and the terrible crimes required relentless and hard-
184
Geoffrey Nice, Justice for All and How to Achieve It, Scala Arts & Heritage, London, 2017,
p. 301.

nosed prosecutions. The success or failure in these cases is world news.

Trials have been long, often years. The evidential base is usually huge.
High-level defendants generally have not been proximate to the crimes
themselves. This required reliance on complex legal theories of culpability
such as joint criminal enterprise or common purpose. Evidence linking
high-level defendants to the crimes on the ground is difficult to find and to
adduce before the courts. So, these cases remain very demanding on all the
counsel and judges involved. The stakes have always been very high.
With all this, my single observation over twenty years is prosecuting
counsel go one of two ways. Some find reasons for the ends to justify the
means and in the process detach themselves, either fully or partly, from
what is right and decent. Other prosecutors in these charged cases, like
Geoffrey Nice, worked twice as hard to ensure defendants benefited from
every fundamental trial right even in the face of mass murder. Giving the
Devil the benefit of the law takes great strength and courage, but it is the
only way to ensure that such international trials survive the legal process
and the scrutiny of history.
William Roper: “So, now you give the Devil the benefit of
law!”
Sir Thomas More: “Yes! What would you do? Cut a great road
through the law to get after the Devil?”
William Roper: “Yes, I’d cut down every law in England to do
that!”
Sir Thomas More: “Oh? And when the last law was down, and
the Devil turned ‘round on you, where would you hide, Roper,
the laws all being flat? This country is planted thick with laws,
from coast to coast, Man’s laws, not God’s! And if you cut
them down, and you’re just the man to do it, do you really
think you could stand upright in the winds that would blow
then? Yes, I’d give the Devil benefit of law, for my own safe-
ty’s sake!” 185
185
Robert Bolt, A Man for All Seasons, 1954.

11
______
Only the Best Should Prosecute and

Judge in International Justice
Julija Bogoeva *
I would like to leave behind me the conviction that if we

maintain a certain amount of caution and organization we de-
serve victory [but] You cannot carry out fundamental change
without a certain amount of madness. In this case, it comes
from nonconformity, the courage to turn your back on the old
formulas, the courage to invent the future. It took the madmen
of yesterday for us to be able to act with extreme clarity today.
I want to be one of those madmen. [...] We must dare to invent
the future. 1
11.1. Introduction
When the explosion of nationalism destroyed Yugoslavia primarily because
Serbian chauvinists and their leader Slobodan Milošević wanted to make
Serbia Great again, a prominent colleague journalist in Belgrade said to me:
“these are hard times”. In the Serbo-Croatian language, the word is the
same for hard and heavy, so hard and heavy times. I think of this often be-
cause these are also hard and heavy times in, to quote one of the last presi-
dents of Yugoslavia, “a strange and dangerous world”. 2
The world has always been strange (and fascinating and beautiful, if
I may add), but it has never been more dangerous, or in greater peril, be-
*
Julija Bogoeva holds a law degree from the University of Belgrade. As a journalist she
reported from the ICTY the first four years. For thirteen years, she was a researcher at the
ICTY Office of the Prosecutor. She is the co-editor of the book Srebrenica – Ein Prozess,
and author of the analysis “The War in Yugoslavia in ICTY Judgements”.
1
Thomas Sankara, a man of integrity, President of Burkina Faso 1983-1987 (assassinated), in
a 1985 interview with Swiss journalist Jean-Philippe Rapp: “Interview de Jean Philippe
Rapp réalisé en 1985: ‘Oser inventer l’avenir’” (available on the Thomas Sankara’s web
site).
2
Janez Drnovšek, “Interview with the President of the Republic for radio Štajerski val”, Pres-
ident of the Republic of Slovenia, 17 January 2007 (available on the President’s archived
web site).

cause of the real threat of nuclear war, 3 the existence of nuclear and other
weapons of mass destruction, and because of the effects of human acceler-
ated global warming.
This chapter is a personal reflection on the significance of integrity,
with a focus on the International Criminal Tribunal for the former Yugosla-
via (‘ICTY’) and the International Criminal Court (‘ICC’).
11.2. The Context: These Are Not Times of Integrity
At the outset, I would like to mention some elements more directly relevant
to the very important topic here in the contemporary context.
These are not times of integrity in any meaning of the term, nor times
of justice, equality, fraternity, and human dignity:
• The world population has never been more depressed, according to
the latest research; 4 and no wonder.
• Finance and competition are religion, and money is God; market-
based societies have led to repugnant forms of inequality being nor-
malized, 5 while “a fundamental truth – that peace rests on social jus-
3
UN Secretary-General António Guterres, “Remarks to the Conference on Disarmament”, 25
February 2019, stating that “I will be blunt. Key components of the international arms con-
trol architecture are collapsing.”; John Mecklin, “A new abnormal: It is still 2 minutes to
midnight – 2019 Doomsday Clock Statement”, Bulletin of the Atomic Scientists, 24 January
2019 (available on its web site); Scott Ritter, “One Minute to Midnight”, Truthdig, 12 Feb-
ruary 2019 (available on its web site), which states that “I disagree, however, with his use of
the word ‘slightly’ to describe the situation we face, and I dissent from the bulletin’s deci-
sion to stay the hands of the Doomsday Clock. Humanity is sleepwalking toward global an-
nihilation, furthered by a collective amnesia about the threat posed by nuclear weapons, es-
pecially in an environment void of meaningful arms control […] The world is on the edge of
the nuclear abyss. It’s one minute before midnight and we are acting as if we have time. We
don’t”.
4
Julie Ray, “World Took a Negative Turn in 2017”, Gallup, 12 September 2018 (available on
its web site); The Edelman Trust Barometer published global research in late 2017 showing
that on average 53% of people worldwide felt the system they lived in was failing. Respond-
ents expressed a “sense of injustice”, “lack of hope”, “lack of confidence” and “desire for
change”. In countries like France, Germany, Italy, US, Spain, the UK and the Netherlands,
between 56% and 72% of the population described a meltdown of their trust in democratic
society, see “2017 Edelman Trust Barometer”, Edelman, 21 January 2017 (available on its
web site).
5
See Boaventura de Sousa Santos, The End of the Cognitive Empire, Duke University Press,
Durham and London, 2018, Preface: Peter Phillips (author of Giants: The Global Power
Elite, Seven Stories Press, New York, 2018) examines the roles and networks of the world’s
richest and most powerful in interview with The Real News, see “The Global Power Elite: A

11. Only the Best Should Prosecute and Judge in International Justice
Transnational Class”, The Real News Network, 26 December 2018 (available on its web site).
In the interview, Phillips said:
In that sixty, seventy year period now, we’ve seen a globalization of power and wealth in
the world so that capital is concentrated in very, very few hands, the hands of what I call
the giants, these are the transnational investment companies. Seventeen of them have
over a trillion dollars in assets collectively, seventeen controlled forty-one trillion dollars
in 2017. They represent and are the investment, literally the investment banks and in-
vestment advisers, for the two thousand plus billionaires and the thirty-six million mil-
lionaires in the world who put their money into investment capital where they want to
get a return, annual return. And that’s been concentrated, the wealth has concentrated
even greater now, it’s like eight people have control over half the wealth in the world.
But what it boils down to is eighty percent of the people in the world live on less than
ten dollars a day, half of the people in the world live on less than three dollars a day, and
about a quarter live on less than two. So there’s massive inequality. 30,000 people a day
die from starvation and malnutrition, so there’s this ongoing massacre of people. When
there’s more than enough food in the world, a third of it’s thrown away because it’s just
not profitable to sell it. So this whole system is pretty much non-humanitarian, based
upon gaining profit and capital concentration, and of those seventeen giant investment
firms, there’s only 199 people that manage those firms. So they’re deciding how wealth
will be invested, fifty trillion dollars worth now, and making those kinds of decisions.
And their biggest problem is they’ve got more capital than they’ve got safe places to put
it in.
Henry Girouw, “Resisting the Weaponization of Ignorance in the Age of Trump”,
Truthout, 12 February 2019 (available on its web site), where he wrote:
A morbid inequality now shapes all aspects of life in the United States. Three men – Jeff
Bezos, Warren Buffett and Bill Gates – have among them as much wealth as the bottom
half of U.S. society. In a society of pervasive ignorance, such wealth is viewed as the
outcome of the actions and successes of the individual actors. But in a society in which
civic literacy and reason rule, such wealth would be considered characteristic of an
economy appropriately named casino capitalism. In a society in which 80 percent of U.S.
workers live paycheck to paycheck, and 20 percent of all children live below the poverty
line, such inequalities in wealth and power constitute forms of domestic terrorism – that
is, state-initiated violence or terrorism practiced in one’s own country against one’s own
people...We live in dangerous times and there is an urgent need for more individuals, in-
stitutions and social movements to come together in an effort to construct a new political
and social imaginary. We must support each other in coming to believe that the current
regimes of tyranny can be resisted, that alternative futures are possible and that acting on
these beliefs will make radical change happen.
Richard Wolff, “Economic Update: Is U.S. Capitalism In Decline?”, The Real News
Network, 9 July 2019 (available on its web site), where he stated that “[i]n 2018 the average
pay of an American CEO was – 238,000 dollars a week, the average pay of an American
worker was – 752 dollars a week”. Moreover, according to research of Jörg Wiegratz, Lec-
turer in Political Economy of Global Development at University of Leeds,
we are currently living in the age of fraud. Fraud has become mainstream; it is at high
levels, institutionalized, at the core of “the system” and part and parcel of the
(re)production of contemporary society. That applies to many societies, not just in the
often discussed Global South but also in the Global North.

tice has been ushered out of our sight and consciousness”, noted an
author on the digital publication platform Social Europe.
• The principle of legality, democratic institutions and the rule of law
are being undermined or openly abandoned.
• Trust between States, in national institutions and a rule-based order is
at a breaking point, as stated by the United Nations Secretary-
General (‘UNSG’). 6 Research tells us that trust in justice and the
courts is low and that, in many countries of the global south and
north, the military and the police are trusted more. 7 It also confirms
that “[d]istrust in domestic judiciaries tends to go together with dis-
trust in the international judiciary”. 8
Humanity seems to have lost moral compass:
• States are becoming more and more secretive, effectively ensuring
impunity for the ruling class, including for core international crimes,
while expanding their surveillance powers over everything and eve-
ryone. 9
• Whole countries are being destroyed on false pretences in criminal
wars with new levels of barbarity and violations of international hu-
The seven key characteristics of contemporary fraud in the global economy include: (i)
fraud is at an industrial scale; (ii) it has become significantly routine; (iii) it is ever more bla-
tant; (iv) it is spreading across the economy and society, that is, it is affecting new areas,
such as education; (v) it produces staggering levels of social harm; (vi) it is co-produced by
economic and state actors; and (vii) it implicates the most powerful members of society (the
ruling class, transnational companies, top managers, top state officials, the rich and famous,
celebrated role models, etc.). See Jörg Wiegratz, “The Age of Fraud: the Link Between
Capitalism and Profiteering by Deception”, Counter Punch, 26 September 2018 (available
on its web site).
6
UN Secretary-General António Guterres, “Address to the General Assembly”, 25 September
2018.
7
Courtney Johnson, “Trust in the Military Exceeds Trust in Other Institutions in Western
Europe and U.S.”, Pew Research Center, 4 September 2018 (available on its web site).
8
Erik Voeten, “Public Opinion and the Legitimacy of International Courts”, in Theoretical
Inquires in Law, 2013, vol. 14, no. 2, p. 425. It is notable that in Gallup’s 2005 “Voice of the
People” survey, the single broad comparative survey the author found that asked about the
ICC, those with negative sentiments outnumbered those who were positive only in Austria,
Croatia, Israel, Serbia and the United States.
9
William Binney, “Random Slaughter: ‘The NSA Tracks Them and the CIA Whacks Them’”,
Information Clearing House, 8 August 2018 (available on its web site)

manitarian law, which have caused hundreds of thousands of deaths,

based on conservative estimates. 10
• Technology is posited as the definitive panacea for human problems,
while technologies over which man no longer has control are being
used for military purposes in an already overly militarized world. 11
The question then is whether there is at all a place for international
(criminal) justice in these hard and heavy times, these times of uncertainty?
Is the entire project reversible? Can there be integrity in international
(criminal) justice, just a piece of a whole, if the whole is so lacking of it?
My answer to these three questions is yes, but the focus here is on integrity,
which is essential, like never before.
11.2.1.1. Integrity Is Necessary More Than Ever
Delivering justice is synonymous with integrity in the common imagination.
The sequence, in my view, is this: legality – legitimacy – integrity – inde-
pendence – justice – credibility. If that order is correct, integrity is central
to independence, to the delivery of justice, and to the credibility of interna-
tional (criminal) justice. That means that only the best, only persons of in-
tegrity, should have a place at the helm in international (criminal) justice.
Integrity, in my understanding, is an all-encompassing human quality;
it is indivisible, a way of being, a way of living. It means straightforward
honesty, clear ethics, transparency of motives and behaviour. It includes
moral, intellectual and professional integrity. It is the full consciousness of
the meaning and importance of the mandate, of judicial responsibility as
the ultimate protector of human dignity, and of one’s role and duties in
achieving the assigned purpose.
10
Nicolas J.S. Davies, “How Many Millions of People Have Been Killed in America’s Post-
9/11 Wars? – Part One: Iraq”, Consortium News, 22 March 2018 (available on its web site);
Nicolas J.S. Davies, “How Many People Has the U.S. Killed in its Post-9/11 Wars? Part 2:
Afghanistan and Pakistan”, Consortium News, 3 April 2018 (available on its web site); Ni-
colas J.S. Davies, “How Many Millions Have Been Killed in America’s Post-9/11 Wars?
Part 3: Libya, Syria, Somalia and Yemen”, Consortium News, 25 April 2018 (available on its
web site); UN Assistance Mission in Afghanistan, “Civilian Deaths From Afghan Conflict in
2018 at Highest Recorded Level – UN Report”, February 2019.
11
“Addicted To Technology – Most People Don't Even Realize What's Coming”, Information
Clearing House, 10 August 2018 (available on its web site); António Guterres, “Remarks to
the Conference on Disarmament”, see above note 3. That technology is not the solution to
man’s troubles and tribulations was argued, for instance, decades ago by Erich Fromm, and
today persuasively by James Bridle, New Dark Age: Technology and the End of the Future,
Verso Books, London, 2018.

Individuals with integrity have a genuine, unwavering commitment

to only one purpose – the fair and impartial administration of justice. There
is no separate interest that they hope to achieve through their function.
They are content with the benefits that come with their role. They are not
driven by vanity or ambition to secure a place in history, to be seen as im-
portant or in the company of those deemed important, and certainly not by
mere power and any material gain. “Court decisions help to create the basic
value system of society and establish the character of our constitutional
democracy. And every detail matters. [...] The objective is not to please or
displease anyone, but to converse with as much rigour, integrity and
awareness of our constitutional responsibilities as possible, with as wide an
audience as can be imagined”, wrote former Justice of the Constitutional
Court of South Africa, Albie Sachs. 12 His words have a universal meaning
applicable to international (criminal) justice.
Integrity implies a well-integrated, mature personality, a free indi-
vidual. It usually goes in tandem with an open mind, a passion for
knowledge and the broader meaning and potential of the law, as well as
firm respect for the dignity of every human being. As expressed by a US
federal judge, reminding of Aristotle’s teaching that judges should be the
very personification of justice:
To me, the essential attribute of judicial integrity is a passion
for justice informed by a deep and abiding morality, a com-
passion that propels the judge to a just conclusion even when
the party or the issue before the bar is unpopular. I speak of
those occasions when, as Justice Black so eloquently said, the
‘courts stand against any winds that blow as havens of refuge
for those who might otherwise suffer because they are help-
less, weak, outnumbered, or because they are nonconforming
victims of prejudice and public excitement’. When a judge has
the courage of his convictions, a willingness to do what his
understanding of the law tells him is right, (not the result that
reading of the latest polls tells him will be the most popular),
he can in my view properly be called a judge of integrity. [...]
As a society, [we] must measure the worth, and the integrity,
of the judiciary not by the extent to which its judgments are
popular or accepted by some ephemeral majority, however de-
fined, but rather by the extent to which the judgments of the
12
Albie Sachs, The Strange Alchemy of Life and Law, Oxford University Press, 2009, pp. 148–
149.

courts spare us from the disorders that otherwise inevitably re-

sult from injustice. 13
A person possessing integrity has the will to be one’s best and not to
falter. Such a person enables and contributes to institutional integrity by a
genuine interest in every aspect of the work process and the people in-
volved. In practical terms, that should lead to timely improvement of inter-
nal processes and procedures, and importantly, to optimal tasking: match-
ing the right person with each assignment so that the highest quality is effi-
ciently achieved in every phase and aspect of establishing the truth and do-
ing justice.
Individuals of integrity recognize, and repel, attempts at the abuse of
their role and the court’s functions, as well as all forms of corruption. In all
situations and relations, they act competently, honourably, and with respect,
upholding the dignity of the court. This may invite anger and frustration,
especially of the powerful, or hierarchically superior, but it can also gener-
ate respect and even admiration for the independence of the court and its
officers.
11.3. The Best Are Needed
In my view, judging fellow humans for criminal conduct is the most unique
human activity, and that in itself imposes the highest requirements of integ-
rity. It is a formidable task to entrust a person with restoring the human
dignity of a victim of violent crime through a credible humanly-constructed
judicial proceeding that satisfies the victim’s intense desire for justice, for
truth, for solidarity, a universal desire inherent to man. By renewing and
reaffirming the humanity of the victim and acknowledging the humanity of
the perpetrator through finding the truth and locating the responsibility,
through establishing the crime and deciding the punishment, the sanity and
humanity of the community and society disrupted by the criminal breach
are restored. One cannot but always ask anew – is it truly possible that hu-
man beings, in all their frailty, are capable of, and can actually perform
such a task. Yet they are, and they do. But in order to serve justice and de-
liver justice, they need to have, sine qua non, the high human qualities.
Otherwise, an apprehension would prevail: how can those who themselves
lack the conscience, the quality, the gravitas of integrity sit in judgment for
13
Frank M. Johnson Jr., “Civilization Integrity, and Justice: Some Observations on the Func-
tion of the Judiciary in Honor of Judge Irving L. Goldberg”, in SMU Law Review, 1989, vol.
43, pp. 650–651, 655.

the truth, the restoration of individual dignity and the reparation of the in-
tegrity of community and society.
In international (criminal) justice, people of integrity, the very best,
are needed for attaining the highest standards of law, the best law, 14 the
highest standards of uncovering the truth and of justice. They are needed
because of the exceptional nature of the crimes, because of the extraordi-
nary complexity and hostilities of the international environment in which
they operate, and because it is only right that the best should judge the
worst excesses of humanity, demonstrating fairness and advantages of jus-
tice over revenge.
Integrity entails incorruptibility, a particularly important element,
which protects against instrumentalization; against the outside influence
and internal pressures. It means speaking up and speaking out whenever
that is called for without fear or calculation.
A 2018 Oxford University multi-disciplinary review of the definition
of integrity in academic literature, 15 40 journals across seven disciplines,
including law, as well as books, found that virtue and ethical framework
appears most productive for the grounding and understanding of the nor-
mative elements of integrity. It also stated that public integrity should be
seen as a rational basis for trust; that it is explicitly concerned with the co-
herence of purposes, and the consistency of action with those stated pur-
poses; that it is focused on the cultivation of ethical culture, not simply on
rule compliance, and that it is not merely the absence of corruption.
The study shows that individual-centred conceptions of integrity are
prevalent, but that there is also a growth in the academic literature on the
integrity of institutions. The linking of integrity directly to institutions is
considered a promising development, citing views that an institution will
have integrity if it adheres to its publicly declared values, and that integrity
14
Philip Allott opines that “lawyers have a duty to try to make the law as good as it can be.
Nowhere is this more necessary than in international society [...] We must give to interna-
tional law the true status and function of law in a society of all human beings and all human
societies – an international society in which other human societies, including state-societies,
play their part in serving the common human interest, that is to say, the survival and flour-
ishing of all human beings”. See Philip Allott, “How to Make a Better World: Human Power
and Human Weakness”, FICHL Policy Brief Series No. 75 (2016), Torkel Opsahl Academic
EPublisher, Brussels, 2016 (https://www.legal-tools.org/doc/a35654).
15
Thomas Robinson, Lucinda Cadzow and Nikolas Kirby, “Investigating Integrity: A Multi-
Disciplinary Literature Review”, in Working Paper, Blavatnik School of Government, Uni-
versity of Oxford, 2018.

pertains to the “relationship between an institution’s performance and the

truth”.
Particularly important, in my view and experience, is the interest in
the literature in “the coherence of individuals and institutions: what their
values are and how do they cohere”, “the extent to which individuals and
institutions have remained true to those values – how they endure over
time”, and on the need for “internal coherence of one’s purposes to be met
with a consistency of action”.
Equally relevant is the focus on ‘an ethical climate’ of an organiza-
tion or institution, “the culture and ethical environment that the institution
can promote to aid self-regulation and adherence to organizational pur-
pose”. These depend, based on my experience, in most part on the integrity
of those in leadership positions.
The study observed that the relationship between integrity and cor-
ruption is being refined from simple misuse of public office for private gain
towards how institutions diverge from their purpose, capturing problematic
activity that conventionally would not be considered corrupt. The concep-
tion that “integrity is analytically distinct from the absence of negative be-
haviour, such as corruption or bribery” has, I would say, a particular value
in international (criminal) justice where typical forms of corruption and
bribery will be avoided. The main insight is that integrity is more than the
absence of corruption, that it can mean “that an organization and its mem-
bers strive to maintain a commitment to the organization’s legitimate pur-
pose”.
I have had the privilege of seeing integrity at work in the ICTY Of-
fice of the Prosecutor – from staff in supporting roles, through investigators,
analysts, junior lawyers and at the senior level. From tireless work that im-
proved the technical abilities to conquer mountains of evidence despite un-
clear or misguided instructions and deadlines, through hard-fought battles
for understanding the evidence and choosing the best evidence, to decisions
at the most senior level that unfailingly upheld the integrity of the Office.
When I first interviewed former ICTY Prosecutor Louise Arbour, 16 I
said to her that many people believe that she does what powerful politi-
cians tell her to do or not do, but before I even finished she exclaimed: “No
one tells me what to do”. There was no doubt in my mind about that.
Whenever I saw her at the Tribunal, I remember thinking: “Louise is here,
16
Chief ICTY Prosecutor 1996–1999.

we are safe”. I believed in her and trusted her judgment. I have equal re-
spect for Carla Del Ponte 17 who fended off all kinds of pressures, both ex-
ternal and internal, and was punished for attempting to pursue the so-called
special investigations in Rwanda and other reasons. 18 When Serge Bram-
mertz 19 became the Chief Prosecutor and was meeting the trial teams, the
first thing he said to us was: “How can I help you?”. The effect of such an
attitude on team spirit and confidence in the fulfilment of the Office of the
Prosecutor mission is immeasurable.
Thanks to the unmatched inspirational power of example, with peo-
ple of integrity, the example of international (criminal) justice can do more
for strengthening the rule of law and efforts at raising the quality of justice
nationally than is imagined and can be measured.
The standards projected by the ICTY were so high that the interna-
tional criminal trial was respected even by opponents not ideologically
blinded or otherwise prejudiced. Professionals and laypeople alike in the
former Yugoslavia, for example, were captivated by the solidity of the
criminal justice process in The Hague, regardless of criticism and dilem-
mas arising from the differences between the domestic civil law system and
the hybrid law and procedure of the ICTY. That, despite the incessant, ve-
hement anti-ICTY propaganda. The confidence the ICTY process inspired
was captured in anecdotes mentioned by Arbour at an event in Amsterdam
while she was Chief Prosecutor. A surviving victim in Bosnia had been
asked what she would do with the perpetrator. She replied that she would
kill him, or better yet, go to “that woman judge in The Hague”. The father
of a Serbian victim in Kosovo replied to a similar question that he would
want to see the perpetrator in the dock in The Hague. A number of the ac-
cused preferred the ICTY to domestic jurisdiction. A desire to attain high
17
Carla Del Ponte, Chief ICTY Prosecutor 1999–2007.
18
John Hooper, “I was sacked as Rwanda genocide prosecutor for challenging president, says
Del Ponte”, The Guardian, 13 September 2003 (available on its web site). Del Ponte’s fight
for the independence of the Prosecutor is reflected in WikiLeaks cables. Her mandate at the
ICTY was renewed on 4 September 2003, but her Office was split. A veteran ICTY journal-
ist Marliese Simons wrote in the New York Times on 28 July 2003: “With the quiet support
of the United States, the Rwandan government has been campaigning to have Carla Del
Ponte replaced as chief prosecutor for the tribunal dealing with the mass killing in Rwanda
in 1994, Western diplomats and tribunal officials have said in recent days”. See Marlise Si-
mons, “Rwanda Is Said to Seek New Prosecutor for War Crimes Court”, New York Times, 28
July 2003 (available on its web site).
19
Serge Brammertz, Chief ICTY Prosecutor 2008–2017.

standards of administration of justice ‘like in The Hague’ was often men-

tioned by committed professionals from the former Yugoslavia in discus-
sions about domestic circumstances and the national criminal justice sys-
tem. That should come as no surprise. The dream of every true professional
is to practice in a highly professional environment of individual and institu-
tional integrity, “in a court of law, because that is where the real law is”, as
one of my professors used to say.
11.4. Impunity of the Most Powerful Must End
Integrity is also necessary because it is no longer possible to ignore that the
most powerful States are responsible for grave international crimes and that
their officials may be criminally liable. International criminal justice does
not have a future if the most powerful violators enjoy impunity. Bringing
the most powerful to justice requires integrity. It is a test of integrity and
proof of integrity.
Persons of integrity in leadership positions should be expected to el-
evate contacts and relations between the international courts and State rep-
resentatives to a completely different level and quality than that revealed
by WikiLeaks and other releases; one that maintains integrity and inde-
pendence of the courts, professionalism, and respectful diplomatic tact,
never going beyond the law and what is appropriate. International (criminal)
justice is not a matter of favour or favours by the powerful, it is not at their
service and should not be presented, understood, practiced or seen as such.
11.4.1. Culture of Untruth and International Criminal Justice
There is, in my view, a fundamental contradiction between the truth, on the
one hand, and the prevailing system and culture founded on the slogan of
the free market but the reality of monopolies, reinforced by the internet and
new technologies. The market generates false needs and values relentlessly
promoting and utilizing perception as deception. Everything has been
commodified, including the human being itself: we sell children, grown-
ups, our bodies and body parts. The pressure for speed, a corollary of mar-
ketization and digital technology, has created a social vortex that is doing
away with memory, history and everything permanent and certain. Truth is
defined as relative and laughed away by the growing number of cynics as
irrelevant, a remnant of bygone times. Truth equals opinion, is the publicly
nurtured formula.

In the high-speed competition that prevails, everything must be in-

stant, and hence is superficial. No time, and no need, for study, for depth,
for nuance, for reflection, for listening and understanding. To be first is to
be seen and heard. The newly imposed norm of fastness, of immediacy,
works against (criminal) justice which, in particular at the international
level, is inevitably slow. To follow and understand it require interest, time,
study, reflection. Even some legal commentators, caught in the speed trap,
publicize their views before a proper review of the subject-matter of their
commentary; they act on the first ball. Today’s unprofessional media in-
stantly pick up their instant opinions on important issues of international
law and international criminal justice. The result is the wide dissemination
of misinformation, of opinion as fact, instead of information and clarifica-
tion. This deeply troubling state of affairs is exemplified by the blitz reac-
tions of legal pundits to the recent ICC Appeals Chamber judgement in the
Jordan referral regarding the arrest of Al-Bashir, a decision of fundamental
importance for international criminal law.
By all measures, it is an age of untruth. 20 A striking recent illustration
came from a high official of a powerful government. On 15 April 2019, the
former CIA Chief, now US Secretary of State Mike Pompeo, said at Texas
A and M University: “What’s the cadet motto at West Point? You will not
lie, cheat, or steal, or tolerate those who do. I was the CIA director. We lied,
we cheated, we stole. It’s – it was like – we had entire training courses. It
reminds you of the glory of the American experiment”. 21
International criminal justice is incompatible with the age of untruth.
International crimes, by their nature, expose the essence of the prevailing
system and culture, their lies and fallacies. At the national level only some-
times and some crimes reach that deep and touch that high, to the summit
of power. National trials of such cases can more or less easily be influenced
or prevented.
Hallmarks of integrity, such as an open mind, knowledge, intellectual
honesty, are essential for grasping and revealing core international crimes
in their intricate and intertwined local and global context, but also for con-
fronting the reaction of the power structures that oppose the uncovering
20
One such measure is a list of admitted false flag attacks, most of which are in the last 30
years. See George Washington, “The Ever Growing List of Admitted False Flag Attacks”,
Zero Hedge, 3 July 2017 (available on its web site).
21
Tyler Durden, “I was the CIA Director, We Lied, We Cheated We Stole”, Information Clear-
ing House, 22 April 2019 (available on its web site).

and public unwrapping of their role. Steering an international criminal

court with integrity in an age of untruth is as hard an endeavour as can be.
The problem is not theoretical. Some States which were vocally ad-
vocating for the establishment of the ad hoc tribunals are major violators of
the laws of war and international law. They have long records of resenting
the ‘entanglements of the law’ if it crosses the interest of their ruling clas-
ses. Time and again they have made clear that international (criminal) jus-
tice is for ‘the other’, ‘the barbarians’, not for them, despite their own role
in the conflicts that attracted international criminal jurisdiction. Their posi-
tion can be summarized in the words of a leading Serbian chauvinist and
Miloševic collaborator who said: “The crimes of the Serbs are in the realm
of God and the crimes of the Croats in the realm of the Devil”. The attitude
of these States towards the ICC leaves no room for doubt. That includes
States which have not openly disavowed the Court, States which nominally
support it. In words, not consistently in deeds. Certainly not when they ma-
noeuvre behind the scenes to direct the Court and not only through ap-
pointments of the highest officers.
The exact truth of the attempts of control should be established and
made public. 22 Interference and obstruction need to stop. They should be
condemned and banished from our culture. Judicial organs need to be inde-
pendent in fact instead of on paper, in noble proclamations and opportunis-
tic speeches.
Not long ago there was a renewed global confirmation “that the in-
dependence of the judicial system, together with its impartiality and integ-
rity, is an essential prerequisite for upholding the rule of law and ensuring
that there is no discrimination in the administration of justice”. It was ac-
companied by a pledge and a recognition of the role of the ICC:
We commit to ensuring that impunity is not tolerated for gen-
ocide, war crimes and crimes against humanity or for viola-
tions of international humanitarian law and gross violations of
human rights law, and that such violations are properly inves-
tigated and appropriately sanctioned, including by bringing
the perpetrators of any crimes to justice, through national
22
See Muhamed Sacirbey, in “A Diplomatic “Hunting Party” – facts never published before by
Ms. Hartmann – part 1”, Croatian World Network, 16 September 2007, section “A Timeline
of Evidence” (available on its web site); Christopher B. Mahoney, “The Justice Pivot: US
International Law Influence Outside the Rome Statute”, in Georgetown Journal of Interna-
tional Law, 2015, vol. 46, no. 4.

mechanisms or, where appropriate, regional or international

mechanisms, in accordance with international law, and for this
purpose we encourage States to strengthen national judicial
systems and institutions.
We recognize the role of the International Criminal Court
in a multilateral system that aims to end impunity and estab-
lish the rule of law [...] and call upon all States that are not yet
parties to the Statute to consider ratifying or acceding to it,
and emphasize the importance of cooperation with the
Court. 23
11.4.2. Full Protection for Whistle-Blowers

As a guarantee of integrity, international justice jurisdictions need to have
procedures in place for whistle-blowers that include their full protection.
Whistle-blowers are “the bad conscience of our democracies”, under-
scored Florence Hartmann in her latest book: “They are police, military,
civil servants, executives who stand up against the state or the company
that employs them to denounce illegal activities, abuses of power, serious
threats to health, public safety or the environment”. 24 They can also be
judges, as occurred at the ICTY, which had no provisions for whistle-
blowers. The judge who cried wolf was shown the door. 25
The assault on truth and truth-tellers, a constant in history, has in the
last two decades become an aggressive, concerted effort of the State appa-
ratus as a tool of moneyed, military, intelligence and instrumentalized
mainstream media interests. The obvious aim of this naked attack is to in-
stil fear and keep a permanent lock on, or label as lies, fabrications or sub-
version, the facts and evidence about unlawful, immoral and outright crim-
inal policies and actions, including core international crimes, of State offi-
cials and State proxies. The iron fist of the ‘democratic’ State has come
down brutally on a long line of whistle-blowers culminating in the blatant
abuse of the law at every twist of the ongoing persecution of journalist and
23
Declaration of the high-level meeting of the General Assembly on the rule of law at the na-
tional and international levels, UN Doc. A/RES/67/1, 30 November 2012 (https://www.
legal-tools.org/doc/d0qwyx/).
24
Florence Hartman, Lanceurs d'alerte. Les mauvaises consciences de nos démocraties, Don
Quichotte, 2014, p. 12.
25
“Credibility of ICTY must be restored”, Norwegian Helsinki Committee, 7 April 2016
(available on its web site).

co-founder of WikiLeaks, Julian Assange. His treatment was characterized

as torture by the UN Special Rapporteur on torture Nils Melzer:
In the course of the past nine years, Mr. Assange has been ex-
posed to persistent, progressively severe abuse ranging from
systematic judicial persecution and arbitrary confinement in
the Ecuadorian embassy, to his oppressive isolation, harass-
ment and surveillance inside the embassy, and from deliberate
collective ridicule, insults and humiliation, to open instigation
of violence and even repeated calls for his assassination. [...]
‘The evidence is overwhelming and clear’, the expert
said. ‘Mr. Assange has been deliberately exposed, for a period
of several years, to progressively severe forms of cruel, inhu-
man or degrading treatment or punishment, the cumulative ef-
fects of which can only be described as psychological torture.
I condemn, in the strongest terms, the deliberate, con-
certed and sustained nature of the abuse inflicted on Mr.
Assange and seriously deplore the consistent failure of all in-
volved governments to take measures for the protection of his
most fundamental human rights and dignity,’ the expert said.
‘By displaying an attitude of complacency at best, and of
complicity at worst, these governments have created an at-
mosphere of impunity encouraging Mr. Assange’s uninhibited
vilification and abuse.
In 20 years of work with victims of war, violence and po-
litical persecution I have never seen a group of democratic
States ganging up to deliberately isolate, demonise and abuse
a single individual for such a long time and with so little re-
gard for human dignity and the rule of law,’ Melzer said. “The
collective persecution of Julian Assange must end here and
now!” 26
The States Melzer refers to are, with one exception, States Parties to
the Rome Statute and strong nominal supporters of the ICC. The irony and
the duplicity are laid bare before the world.
Melzer also delivered a warning:
[...] you may say, why spend so much breath on Assange,
when countless others are tortured worldwide? Because this is
26
“UN expert says ‘collective persecution’ of Julian Assange must end now”, media release,
31 May 2019 (available on the UN Office of the High Commissioner for Human Rights’s
web site).

not only about protecting Assange, but about preventing a

precedent likely to seal the fate of Western democracy. For
once telling the truth has become a crime, while the powerful
enjoy impunity, it will be too late to correct the course. We
will have surrendered our voice to censorship and our fate to
unrestrained tyranny. 27
It is worth recalling here the message of the German philosopher
Karl Jaspers that peace is only possible through freedom, and freedom, in
turn, through truth. Hence, untruth is the actual evil, annihilating all peace:
untruth, from the untruthfulness of the individual to the untruthfulness of
public affairs.
Of interest from the perspective of integrity in the current circum-
stances is that the legal profession has largely remained silent in the face of
such crude, long-lasting, open and public trampling of a human being and
the law. Moreover, a whole line of prosecutors and judges, acting as the
face of the law and justice, are enablers of the criminal attack on Assange
for publishing the truth, including about war crimes committed by forces of
the most powerful States. Together with the corporate mainstream media, it
is the legal profession, and in particular certain prosecutors and judges, that
will be remembered as protagonists of this history of ignominy.
Judge Sérgio Fernando Moro, elevated to the Minister of Justice in
Brazil, whose vigorous abuse of high legal office and the law was caught
on tape and made public, is an exemplary antipode to integrity. The jour-
nalist who published the leaked evidence is being harassed by the Brazilian
government and publicly threatened by the Head of State.
These, and other powerful negative examples, the corrosive patholo-
gy of hiding the truth at all costs and of propagandizing entire populations
with lies presented as truth, has a direct bearing on international criminal
justice: on its ability to perform its important truth-finding role, on the
moral, intellectual and professional fortitude of its officers and staff, and on
the preparedness and willingness of the public to trust in the integrity of
international investigators, prosecutors and judges, and to have faith in the
institutional integrity of international courts.
Under such circumstances, these courts are pressed between cyni-
cism, malevolence and elevated scrutiny that requires of them to make not
27
Nils Melzer, “Demasking the Torture of Julian Assange”, Medium, 26 June 2019 (available
on its web site).

a single mistake that may appear as a departure from the law and ‘high
moral character’, from both individual and institutional integrity. To ensure
the adherence to the highest standards of justice when relevant internal
procedures are not, or cannot be set in motion, or prove to be ineffective,
international courts need to provide full protection for whistle-blowers.
Common sense and experience teach that it is best, or least harmful, to ex-
pose wrongdoing and malfeasance sooner than later, so that problems are
solved instead of stored as family secrets which always have toxic effects
and ultimately never remain in the family.
11.5. Without Integrity, International Justice Is a House of Cards
There is a simple fact that may be overlooked: every person working in
international (criminal) justice forms an impression of the process and
shares it with numbers of people who then pass that on to others. Each per-
son working in international (criminal) justice is viewed with particular
attention by everyone because the mandate is atypical, with expectations
and suspicions attached. Hence, the words and deeds of everyone in inter-
national (criminal) justice determine the trust in its integrity.
Every lapse in integrity, however ‘trivial’ it may seem, has conse-
quences that are not always obvious or predictable. 28 Each one causes dis-
appointment and confusion: internally, it disrupts teamwork because it rup-
tures mutual trust, reliance and respect, and the compactness needed in the
substantial team effort that international (criminal) justice requires. Lack of
integrity at the highest levels leads to anxiety and a drop in mission confi-
dence that infects the working atmosphere; externally, it affects any enthu-
siasm and support for international justice that there may be. Actions that
compromise integrity hand control over the international justice project to
28
Take as an example investigators getting drunk while on mission, or, intoxictated or not,
boasting or denigrating the local officials and populace, or an investigator telling his col-
leagues that the international court they all work in is a ‘kangaroo court’ unlike his national
jurisdiction. Even small lapses not related to integrity, like an unacknowledged courtesy, af-
fect the way the courts, their officials and staff are viewed. I recall vividly the surprise and
disappointment, expressed more in body language than words, of two prominent Belgrade
defense attorneys of great integrity when they received not a word from the ICTY President
for sending him books on Yugoslav law that he needed. The attorneys, one of whom was a
former Supreme Military Court judge, had promptly answered my request to aid the ICTY
President. In memory of that former Supreme Military Court judge, I want to record that
early on in the Yugoslav crisis, he publicly proposed, with passionate argument, the for-
mation of a Yugoslav war crimes court comprising the best Yugoslav judges from all the re-
publics. Unfortunately, it was too late.

witnesses or beneficiaries of those compromising actions. That in itself is a

reason to insist on the integrity of the highest officers in international
(criminal) justice, but also of all involved.
In the States where the crimes were committed, the sceptics and op-
ponents, including officials and public personalities involved in the crimes,
usually believe, or preach, that international courts and their officials are
corrupt, based on domestic practice and Realpolitik. Being corrupt them-
selves, they are usually acutely attuned to the hypocrisy and wheeling and
dealing of politics and international relations, as they are subjected to them.
They have only contempt for the powerful and their proclaimed righteous-
ness. Their philosophy appears to be: we may be no good, but everyone
else is worse. The possibility of the integrity of international (criminal) jus-
tice terrifies them the most. Any semblance, or potential evidence, of lack
of integrity is used by such actors as definitive proof that international jus-
tice is a sham, as they claim all along. This must never be allowed to hap-
pen.
For individuals, groups and organizations in crime zones who believe
in accountability and international (criminal) justice, who actually have a
desperate need to trust international courts, and who take risks by support-
ing them, there is no worse setback than accusations and evidence of lack
of integrity and independence. That needs to be emphasized – there is no
worse setback, with serious consequences for the effectiveness of interna-
tional criminal justice. Because the focus shifts away from the crimes, their
causes and perpetrators, to the alleged or real lack of integrity of the courts,
which calls into question the entire process and all its achievements. These
advocates of accountability and the truth on the ground, where denial is
usually the norm, are forced to defend the ideal of international (criminal)
justice from international (criminal) justice as bad practice. How does one
do that when there is a wholly mishandled case like, for example, the Šešelj
case.
Internationally, the effects are essentially the same: skeptics and op-
ponents are strengthened, and supporters are weakened, which breathes
new life into the culture of impunity.
There can be not even a pretence of integrity when international
judges are lobbying for re-election in New York, leaving the courtrooms
empty for days. Or when they habitually invite young female interns to
dinner and are rumoured to have an unsavoury reputation. Or when they
exert pressure on fellow judges to ensure a certain kind of judgement. Or

when they use a lecture to visiting national judges to insist that ‘their own’
particular judgement is superior being grounded more in civil law, which
they take the time to laud as superior to common law. Or when prosecutors
jeopardize a case by rivalries and personal ambitions and openly blame
each other. Or when a prosecutor insists on absolute personal loyalty and
creates an exclusive circle by surrounding himself with those who comply.
Or when a prosecutor not on a case suddenly, at the last moment, requests
the withdrawal of a signed indictment that is supported by rock-solid evi-
dence. Such dramatic events affect everyone involved. It is even more
damaging when a high profile international prosecutor repeatedly and pub-
licly falsely accuses the chief prosecutor of an alleged deal with a govern-
ment for concealing crucial evidence, or when judgments are manifestly
unjust, being contrary to established facts and the law, but favourable for
powerful States and interests. 29 Or when an unpersuasive decision fully
aligns with the interests of a threatening superpower. 30
It must not be forgotten that there is no greater injustice than injus-
tice done by a court of law or its officers. The resulting harm is profound,
and it cannot be undone. People will then tell you that they have lost all
respect for the judges, the court and the law.
In order to ensure that persons of integrity, the best, are in leading
positions in international (criminal) justice, it is essential to devise an op-
timal system for candidate selection. If all candidates satisfy merit and in-
tegrity criteria, and possess professional experience, the actual system of
appointment or election is of secondary importance. Until a time when in-
ternational judges and prosecutors are elected by an independent profes-
sional body, their election or appointment will remain politicized. Interests
other than the interests of justice may be determinative. It is well known
that international positions are used in domestic politics to reward loyalty,
return favours or repay debts, to remove those considered undesirable, or to
promote friends, family or partners, and, not least, to secure influence, in-
side information and control. It has become clear over the years that some
29
Julija Bogoeva, “International Judges and Government Interests: The Case of President
Meron”, FICHL Policy Brief Series No. 48 (2016), Torkel Opsahl Academic EPublisher,
Brussels, 2016 (https://www.legal-tools.org/doc/56a576).
30
ICC, Situation in the Islamic Republic of Afghanistan, Pre-Trial Chamber, Decision Pursu-
ant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situa-
tion in the Islamic Republic of Afghanistan, 12 April 2019, ICC-02/17-33 (http://www.legal-
tools.org/doc/2fb1f4/).

powerful States do not want their nationals at the highest positions in inter-
national criminal courts in order to avoid the attendant responsibilities and
‘entanglements’, but instead try to make use of all other avenues of influ-
ence and control.
It seems most purposeful to focus on ensuring that only quality can-
didates are in the running. They should be put forward at the national level
by professional bodies, not governments and politicians. One way would
be to establish a pool of candidates for domestic and international war
crimes prosecutions at the State level. That would, as a matter of policy,
give prominence to accountability for core international crimes, and incen-
tivize and enable interested professionals to aim for qualifying for such a
pool. The criteria would be merit and integrity based, transparent, and set
by the legal profession. Maximum three members of a national pool at any
given time could be included in such a pool at the international level. They
would be chosen by a national professional body. Any candidates for the
most senior positions in international justice, however, selected from such
an international pool, and those finally elected or appointed, would have
the necessary qualities, as a minimum guarantee of integrity and effective-
ness of international (criminal) justice. But the aim should be higher, that
the best in the pool become candidates for the top positions. That would
require the will to have the best and to identify the best at every election or
appointment of the most senior officers in international justice. The stimu-
lating of this will, so that it takes root and can be fostered, is a primary task
in creating a new culture of international justice, peace, human dignity and
prosperity for all.
The simple slogan – “If you want peace, have justice” – of the global
movement World Beyond War, encapsulates this new culture that, in fact, is
being created by people of integrity around the globe. In cultivating the
will to have only the best prosecute and judge in international justice, legal
professionals of integrity will by no means be alone.
11.6. Conclusion
Due to lack of integrity and professional excellence of some of its (highest)
officers, and apparent attempts to please the mighty and powerful, or in
fear of their wrath, the still nascent international (criminal) justice project
has faltered and has been endangered. Instead, by displaying individual and
institutional integrity, organs of international (criminal) justice could pre-
vail on the still sceptical and reluctant (States and the general public) that

they are capable of impartially, fairly and independently fulfilling their task;
that there will be no subservience, double standards and hypocrisy in the
administration of international justice.
By earning respect based on integrity, international (criminal) justice
could secure its non-dependence on the big powers of the day, enjoy wide
confidence, and rest on genuine majority support. There is more than
enough evidence that ‘adjusting’ to the wishes and whims of the powerful
means serving the interests of the military-corporate-media complex, the
war machine, which is vitally interconnected with the political class it has
subordinated to its goals of profit and domination. 31 Serving such interests
is directly opposite to the principle of legality, to morality, the notion of
justice and the purpose of international (criminal) justice. It effectively
renders the practice of international (criminal) justice senseless. That hard
fact cannot be changed by any amount of theorizing, pragmatism, well-
wishing, white-washing or propagandizing.
Viewed from any angle, therefore, integrity is key for international
(criminal) justice. Integrity should be valued and acknowledged. Great im-
portance and attention should be given to ensuring that persons of integrity
are in the highest positions in international courts. Their qualities set the
standard and the tone and determine the ethical atmosphere – the more they
are respected and trusted for their integrity, the higher the morale, the work
ethic, and the results. And the willingness to stand up for justice. And not
least, it is very enriching and a pleasure to work with people of integrity.
There are many such professionals. We should always look for them, find
them, and stand by them.
The words of the great humanist Erich Fromm still hold true. The
contemporary contradiction between an abundance of technical means for
material satisfaction and the incapacity to use them exclusively for peace
and the welfare of the people is soluble; it is not a necessary contradiction
but one due to man’s lack of courage and wisdom.
31
William D. Hartung, “The Military-Industrial Complex on Steroids”, Information Clearing
House, 18 July 2019 (available on its web site), which states that “[a]s POGO’s research has
demonstrated, the infamous ‘revolving door’ that deposits defense executives like Esper in
top national security posts swings both ways. The group estimates that, in 2018 alone, 645
senior government officials – mostly from the Pentagon, the uniformed military, and Capitol
Hill – went to work as executives, consultants, or board members of one of the top 20 de-
fense contractors”.

12
______
The Role of Aesthetics in Furthering Integrity

Marina Aksenova *
12.1. Aesthetics, Integrity and the Internal Values of International

Criminal Justice
International criminal law is a discipline that looks outwards by establish-
ing the standards of behaviour upon which the international community
agrees. There is a threshold of reprehensible conduct and anything below
that threshold gets universally condemned. The discipline seeks to protect
the core of life and dignity by outlawing abuses, which can hurt our shared
humanity. The question is whether people directly involved in the process
of administering international justice must embrace the values of interna-
tional criminal law internally. This is when the integrity question becomes
relevant. Is this a legal or an extra-legal consideration?
The policy brief underlying this volume refers to ‘integrity’ both as a
legal term and a virtue term referring to the quality of a person’s character. 1
For instance, Articles 36(3)(a) and 42(3) of the Rome Statute of the Inter-
national Criminal Court (‘ICC’) refer to “high moral character” of the par-
ticipants of an international criminal justice process. The term ‘integrity’ is
simultaneously a virtue term for the purposes of this work. If one dwells on
the virtue meaning of ‘integrity’, the policy brief mentions, among other
*
Marina Aksenova is Professor of comparative and international criminal law at IE Univer-
sity, Madrid. She graduated with honours from the International University in Moscow. She
holds an LL.M. in Public International Law from the University of Amsterdam and an M.Sc.
in Criminal Justice and Criminology from the University of Oxford. Dr. Aksenova defended
her Ph.D. entitled “Complicity in International Criminal Law” in 2014 at the European Uni-
versity Institute, in Florence. Prior to joining the IE Law School, she was as a postdoctoral
research fellow at the Centre of Excellence for International Courts (iCourts), Faculty of
Law, University of Copenhagen.
1
No. 93 (2018), Torkel Opsahl Academic EPublisher (‘TOAEP’), Brussels, 2018 (https://
legal-tools.org/doc/e550f7). See, for more discussion of the legal meaning of integrity, the
lecture by Olympia Bekou, “Integrity Standards in the Statutes of International Criminal Ju-
risdictions”, Centre for International Law Research and Policy (‘CILRAP’) Films, 1 De-
cember 2018 (www.cilrap.org/cilrap-film/181201-bekou/).

definitions, the alignment of intention, speech and action. 2 It is important

for operationalizing the discipline of international justice that those who
are tasked with manifesting its values in specific cases and situations, do so
based on their inner conviction. Any misalignment has the potential of
damaging the system in the long run. How does one connect to the inner
guidance or the inner moral compass of individuals working in the field of
international criminal justice?
One way to promote better connection between inner guidance and
outer norms propagated by international criminal law is through embracing
the wider role of art or aesthetics. Here, it is important to note that the
terms ‘art’ and ‘aesthetics’ are used interchangeably in this chapter. Art is
understood broadly to encompass different forms of expression (visual, au-
ditory, sensual) employed with the purpose of transmitting a certain mes-
sage coloured by emotions. Aesthetics is the study of these processes.
To cover basic definitional concerns, it is useful for the present anal-
ysis to view art as a process of creative expression rather than as an out-
come-driven activity. The work of Simon O’Sullivan is helpful in explain-
ing this specific vision. In his article, “The Aesthetics of Affect: Thinking
Art beyond Representation”, O’Sullivan observes that art is not merely an
object of knowledge to be studied from the perspective of representation,
but something that produces affects. 3 O’Sullivan explains that seeing art
from the ‘representational’ point of view traditionally means one of two
things: either one speaks of the moment of art’s production, which entails
adopting the historical lens through which the object of art is viewed, or,
alternatively, it means that one foregoes the historical explanation and re-
sorts to the framework of deconstructivism. This latter position still refers
to art as an object, which forms part of the representational discourse. 4 But
even after the deconstruction exercise, the object of art remains and contin-
ues to produce affects. Affects are moments of intensity, a reaction in or on
the body at the level of matter. 5
This complex vision of art exposes art’s dual function: to represent
and interpret reality, and to create direct human experience connecting us to
2
Ibid. This approach to integrity also constitutes in part the Noble Eightfold Path to Happi-
ness, which is one of the central teachings in Theravada Buddhism.
3
Simon O’Sullivan, “The Aesthetics of Affect: Thinking Art beyond Representation”, in An-
gelaki Journal of the Theoretical Humanities, 2010, vol. 6, no. 3, pp. 125–135.
4
Ibid., pp. 125–126.
5
Ibid.

12. The Role of Aesthetics in Furthering Integrity
ourselves through aesthetics. Art goes beyond language and even beyond
the representation of meaning by creating a direct experience. It facilitates
the channel of communication between the observer and the observed, dis-
pensing with the dimensions of time and space. 6 In other words, art creates
room in which the attention of the observer is manipulated so that he or she
perceives the world in an unfamiliar way. To further demonstrate what is
meant by the affective function of art, it is helpful to refer to the work of
the art theorist John Dewey, who points out that art traditionally accompa-
nied daily rituals, such as worship, hunting or law-making. 7 Originally, art
was inseparable from the conditions of its creation, thereby bringing its
affective function to the forefront: experience associated with the object of
art was of utmost importance. For instance, the Greek Parthenon, which is
regarded today as an art masterpiece, was originally designed and built as a
place of civic commemoration. 8 Dewey further observes that it is only
much later and through the process of industrialization that art became con-
textualized by being confined to specific places, such as museums or opera
houses. 9 Such contextualization strengthened the representational vision of
art.
The experiential aspect of art opens up the emotional channels for re-
ceiving the interpretative or representational message, while at the same
time avoiding intransigence. In this way, the message is internalized by an
individual, taking into account their subjective reality and experience of
life. It is the process-oriented feature of art that invites contemplation and
makes it possible to speak of the improved alignment of inner moral con-
victions and external action in individuals. Art and creative expression have
the capacity to go beyond firm analytical structures, and surpass cognitive
biases and other ‘mental defences’ to enhance clearer views of the specific
situation calling for attention. Dewey’s distinction between the ‘thinker’
and the ‘artist’ in the context of life cycles is helpful to explain this point.
Life, according to Dewey, goes in cycles reflective of an adaption to
the environment by any living creature. There is constant adjustment and
transformation of imbalance happening (for instance, satisfying hunger).
Dewey calls this process the rhythm of loss of integration with the envi-
6
Ibid.
7
John Dewey, Art as Experience, Capricorn, 1958 [1934].
8
Ibid., p. 4.
9
Ibid., p. 6.

ronment and recovery of union with it. 10 This rhythm produces both intel-
lectual and aesthetic work. The former is more concerned with the conflict
or the situation in which the discord arose, while the latter focuses on the
phase of experience where union is achieved. Hence both the ‘thinker’ and
the ‘artist’ are ultimately concerned with the interaction of any living crea-
ture with its surroundings, simply with the emphasis put in different places.
The intellectuals create solutions to the problem using language, symbols
and mathematical signs, whereas the artists do their thinking in the very
qualitative media they work in. 11
Going back to the question of integrity in the field of international
justice, this chapter argues that the time is ripe to rethink what we expect
from international law. The premise is that there needs to be a better de-
fined link between its ‘outward’ values and the ‘inner’ values of those
tasked with imparting the ‘outward’ values. As a first step in this process,
the chapter suggests reflecting on the vehicles to facilitate this reassess-
ment process. Relying, among other frames of reference, on natural law
theory, it insists on strengthening the persuasive authority of international
law by referring to the list of basic human goods, including that of aesthet-
ics. The contribution engages in particular with the work of John Finnis,
who discusses basic human goods pursued by humans, such as aesthetic
experience. 12 Justice is a way of distributing these goods in society, and
law is a coercive instrument for such distribution. The question is whether
law can also be a direct reflection of the basic goods and not just the ‘en-
forcer’ of them. This is particularly true for international (criminal) law,
which relies strongly on persuasion. International law has the capacity to
impose duties or to confer powers on State officials, thereby reducing arbi-
trariness in their decision-making; it creates causes of action. 13 How can
instrumentalization be prevented and the universality of international law
be preserved in these circumstances? The answer lies in strengthening its
link with the underlying values it represents, including that of aesthetics.
John Finnis in his work on natural law identifies an exhaustive list of
seven basic human goods pursued by humans: life, knowledge, play, aes-
10
Ibid., p. 14.
11
Ibid., p. 15.
12
John Finnis, Natural Law and Natural Rights, second edition, Oxford University Press, 2011,
p. 85.
13
Basak Çali, The Authority of International Law: Obedience, Respect, and Rebuttal, Oxford
University Press, 2015, p. 11.

thetic experience, sociability (friendship), practical reasonableness, and

religion. 14 These elements comprise the notion of good and well-being. The
list is exhaustive because, according to Finnis, the other goods will be the
ways of pursuing or realizing one of the basic goods. 15 The idea of ‘good’
in formulating this list stems from man’s natural inclination to good – a
feature he or she shares with all the substances in nature – with the ultimate
goal being self-preservation. 16 One seeks to attain these goods as an indi-
vidual, but also as a member of the community. As Thomas Aquinas
wrote: 17
since every part is ordained to the whole, as imperfect to per-
fect; and since one man is a part of the perfect community, the
law must needs regard properly the relationship to universal
happiness.
Justice, then, provides a framework for the realization of these goods
in the community. 18
The following section of the chapter dwells on the role of natural law
theory and other theoretical frames of reference in explaining the role of
aesthetics in promoting integrity in the field of international justice. Each
sub-section discusses the role of art and creative expression in reclaiming
the universal dimension of international law from a different theoretical
standpoint. The third section of the chapter moves away from a purely the-
oretical analysis and discusses specific ways in which it is possible to en-
gage with art in the field of international justice. It is argued that one can
see international criminal law trials through the lens of aesthetics by view-
ing them as ritualistic performances. Secondly, it is possible to see art and
creative expression as a method of scientific inquiry aimed at illuminating
unseen elements of the discipline. Finally, one can explore and further de-
velop the idea of engaging with art as a form of reparations practised by the
ICC.
14
Finnis, 2011, see above note 12.
15
Ibid., p. 90.
16
Thomas Aquinas, Summa Theologiae, ST II.I.94:2.
17
Ibid., ST I.II.90:2.
18
Robert Nozick conceptualizes State as a dominant protective association that reserves for
itself the right to judge any procedure of justice to be applied to its clients. He understands
justice in a procedural sense as a moral restriction on the use of force by the dominant asso-
ciation, that is, the State. According to this reasoning only the minimal State can be justified,
for any State that is more extensive violates people’s rights. See Robert Nozick, Anarchy,
State and Utopia, Blackwell, 1974, pp. 101, 149.

12.2. Theoretical Frameworks for Discussing the Role of Aesthetics in

Promoting Integrity
12.2.1. Natural Law Theory
The introduction alluded to the work of John Finnis that enumerates a list
of goods towards which every human strives. 19 Finnis sees justice as a ‘dis-
tributor’ of these goods in society. It is always inter-subjective, or points to
the direction of another person (‘other-directedness’); it regulates duties
owed to others and the corresponding rights; and it contains a measure for
distributing the goods in a proportionate way. 20 Justice excludes arbitrary
self-preference in pursuit of good. 21 Law is the instrument of justice; it is a
force keeping the equilibrium in society by regulating the pursuit of human
goods and thus contributing to a common good of the relevant community.
The coercive qualities of law are well-documented and extensively
discussed. 22 The key question is whether, in addition to being the distribu-
tive force in societies, law can also embody the essence of the human
goods themselves. This question is particularly relevant to international law,
which lacks coercive powers and systemically applicable sanctions akin to
those imposed by national States on its subjects. Take, for instance, the
work of Thomas Hobbes on the coercive powers of law in the context of a
State. He argued that law coerces us by arousing fears about evil conse-
quences of disobedience. 23 The will to obey law is thus the result of a rea-
soned reflection on the implications of one’s actions. The social contract is
enforced without impeding on the individual’s freedom, which, according
to Hobbes, is only taken away by the identifiable acts of interference by
external agents. We cannot be said to act un-freely when obeying law be-
19
Finnis, 2011, see above note 12.
20
Ibid., pp. 161–63.
21
Ibid., p. 164.
22
Hans Kelsen, The Pure Theory of Law, original German first edition 1934; second edition,
1960, translated to English by Max Knight (trans.), University of California Press, Los An-
geles, 1967, p. 34; Dennis Lloyd, The Idea of Law, Penguin Books, Middlesex, 1970 [1964],
p. 35 (in his index, the entry for coercion says, “See force, sanction”); Jacques Derrida,
“Force of Law: The Mystical Foundation of Authority”, in Drucilla Cornell, Michel Rosen-
feld and David Gray Carlson (eds.), Deconstruction and the Possibility of Justice, Routledge,
New York and London, 1992, chap. 1.
23
Thomas Hobbes, Leviathan, Cambridge University Press, 1996, chap. 21, as cited by
Quentin Skinner, in Bo Stråth (eds.), States and Citizens: History, Theory, Prospects, Cam-
bridge University Press, 2003, pp. 15–16.

cause reasoned reflection produces the will to obey the law. 24 The same
will to obey may not necessarily arise with the same strength when it
comes to the norms of international law because the threat of sanctions is
not as pronounced as in domestic orders.
The authority of international law is, to a large extent, persuasive and
includes the capacity of law to impose duties or to confer powers on State
officials. 25 Basak Çali explains that, in practice, it means State officials en-
gage in a deliberative exercise comparing and contrasting the authority of
domestic law and international law when responding to authority claims
made by international law. 26 This is the manifestation of the persuasive
power of international law: it contributes to the decision-making process by
reducing arbitrariness. It thus protects common values, not so much
through coercion, but rather through bestowing additional causes of action
on those in power.
The enforcement deficit characteristic of general public international
law is acutely felt in the specific sub-field of international criminal law,
which is the focal point of this chapter. The problem of modern interna-
tional criminal justice is that it is torn between its focus on the universal
sense of morality and its high degree of dependence on political processes
at international, State and individual levels. For instance, at the internation-
al level, there is no consensus on whether to bring the situation in Syria to
the attention of the United Nations Security Council for its subsequent re-
ferral to the ICC. 27 At the State level, there is wariness by some States
about what is perceived as interference by the international community in
the domestic affairs of States through the activities of international courts
and human rights bodies. 28 And at an individual level, some high-ranking
State officials enjoy de facto impunity, even in the presence of an arrest
warrant issued by the ICC. 29 These inconsistencies have a direct bearing on
24
Ibid.
25
Çali, 2015, see above note 13.
26
Ibid., p. 64.
27
UN Security Council, “Referral of Syria to International Criminal Court Fails as Negative
Votes Prevent Security Council from Adopting Draft Resolution”, press release, 22 May
2014, UN Doc. SC/11407.
28
For example, Reuters, “Philippines informs U.N. of ICC withdrawal, court regrets move”,
16 March 2018.
29
For example, International Criminal Court (‘ICC’), Situation in Darfur, Sudan, The Prosecu-
tor v. Omar Hassan Ahmad Al Bashir, Pre-Trial Chamber I, Warrant of Arrest for Omar Has-
san Ahmad Al Bashir, 4 March 2009, ICC-02/05-01/09-1 (https://legal-tools.org/doc/814cca).

the question of integrity of those tasked with enforcing international crimi-

nal justice, making misalignment of the external ambitions and inner values
more possible due to moral relativism, political constraints, and overall
contradictions implicit in the project of international criminal justice.
How to address these inconsistencies? There is a powerful educa-
tional potential in international criminal law. Its strong moralistic embed-
ment makes it a suitable platform for communicating values to a wider au-
dience. It is not just about the prosecution of individuals but also about
sharing the norms concerning the conduct not tolerated by the rest of hu-
manity. Accountability efforts are dependent on the intensity and scale on
which these core values are shared. 30 This is precisely the point where in-
ternational (criminal) law needs to come in closer contact with the ultimate
values it protects.
If the law seeks to regulate human conduct for the benefit of the en-
tire community, then why not see it as a force capable of upholding the
values more directly through its own authority? Indeed, law embodies its
coercive power and serves as a force maintaining order when it comes to
the value it aims to endorse. However, I argue, law in its operation also
touches upon all basic human values, including that of aesthetics, and not
only the one it directly protects. This is particularly relevant for interna-
tional law, which relies on its persuasive authority. Section 12.3. of the
chapter provides an example of how this theoretical vision can be applied
to an international criminal trial.
12.2.2. Visual Methodology in the Age of the Digital Baroque
Natural law theory is just one framework that supports the use of art or aes-
thetics in promoting integrity. Jurisprudence provides for another fruitful
paradigm to further support the claim of this chapter. Richard Sherwin, a
scholar of contemporary jurisprudence, argues that there is an urgent de-
mand for exploring visual methodology in legal science. The overproduc-
tion of imagery in our modern life is what Sherwin refers to as the age of
the ‘digital baroque’. 31 The term ‘baroque’ emphasizes the shifts in the
30
Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing
World Politics, W.W. Norton, 2011; Marina Aksenova, “Symbolism as a Constraint on Inter-
national Criminal Law”, in Leiden Journal of International Law, 2017, vol. 30, no. 2,
pp. 475–499.
31
Richard K. Sherwin, Visualizing Law in the Age of the Digital Baroque: Arabesques and
Entanglements, Routledge, 2011, pp. 187.

dominant forms of communication, whereby images collected, for instance,

through social media, create mediated reality. 32 The original concept de-
picted by an image fades away with the unfolding of the infinite represen-
tational forms amply supplied by the Internet. The digital baroque calls for
a new mindfulness, one that integrates the affects of the body’s senses with
the mind’s natural capacity to analyse and categorize. 33
Sherwin argues for the exploration of the path of visual jurisprudence
as a way to navigate the new forms of mediated reality. 34 In this new state
of affairs, where the visual shapes our perception of reality, law in its pure-
ly analytical form retains its validity, but loses the significance. 35 This is
where Sherwin finds clear scope for developing new visual rhetoric, inte-
grating ethics and aesthetics. 36 His call is to cultivate visual literacy and to
retrieve the core humanist ideals of creative intuition and eloquence in the
service of ethical wisdom. 37 The wise ‘lawyer-poet-statesman’ finds a way
to balance unruly passions and deceits cultivated in the age of visual ba-
roque with the “tyranny of the rational systems of knowledge” to make civ-
ic life both secure and just. 38 Sherwin’s philosophical and jurisprudential
stance serves to demonstrate the timeliness of an aesthetic intervention in
the development of law as a discipline.
The field of international criminal law is particularly susceptible to
the reception of visual or aesthetic rhetoric at this point of its development.
The discipline urgently requires rethinking and additional support to
strengthen its highly moralistic claims. International criminal law was con-
ceived in the aftermath of World War II as a project to individualize the
responsibility of the senior Nazi leadership for aggression. It later spear-
headed the accountability movements for mass atrocities in the 1990s,
through the creation of the International Criminal Tribunal for the former
Yugoslavia (‘ICTY’) and the International Criminal Tribunal for Rwanda
(‘ICTR’), accompanied by the rise of enthusiasm around the project of in-
ternational criminal justice. The early 2000s, however, signified a shift to-
32
Ibid., p. 174.
33
Ibid., p. 113.
34
In this regard, TOAEP’s commitment to a wider use of the AV-recordings of conference
lectures to support academic arguments in its publications is highly commendable.
35
Sherwin, 2011, p. 177, see above note 31.
36
Ibid., p. 174.
37
Ibid., p. 187.
38
Ibid., p. 188.

wards a more critical perception of the field, leading up to what we now

might call a legitimacy crisis stemming from the growing awareness of the
field’s own inherent limitations. 39
The ICC is engaged in an ongoing battle to garnish support at the
State level so that it can fully exercise its enforcement powers over indi-
viduals. Immi Tallgren articulately explains the difficulties implicit in the
project of international criminal law, such as its propensity to overstate its
own claims. 40 She refers to this field as “a truly illuminating package of
ideas” dealing with existential questions of life and death, and choices be-
tween good and evil. 41 At the same time, Tallgren notes that the focus on
individual criminal responsibility obfuscates complexity and context. In-
stead of discussing nuclear weapons, we discuss machete knives used in
Rwanda. Instead of focusing on State responsibility for aggression, we fo-
cus on individual war crimes, such as rape or murder. 42 Another pertinent
example is the problem of child soldiers.
At the time of writing, the ICC is trying Dominic Ongwen, who
started as a child soldier in the Lord’s Resistance Army in Uganda at the
age of 10, subsequently rising in its ranks. 43 The moral ambiguity of prose-
cuting someone socialized into atrocities as a child certainly gets attention
in the courtroom but is unlikely to get full expression in the eventual legal
judgment. 44 The categories of victims and perpetrators are rather contained
and fixed within the realm of international law, while the reality may be
more complex: with time, child soldiers transition from the role of victims
into the role of perpetrators. 45 Art, therefore, allows contextualization of
law. Augmenting one’s sense of empathy and positive sympathy may not
only involve explaining the nature of an internationally recognized prohibi-
39
Aksenova, 2017, see above note 30.
40
Immi Tallgren, “The Sensibility and Sense of International Criminal Law”, in European
Journal of International Law, 2002, vol. 3, pp. 571, 572.
41
Ibid., p. 593.
42
Ibid., p. 594.
43
ICC, Situation in Uganda, The Prosecutor v. Dominic Ongwen, Case Information Sheet,
October 2018, ICC-02/04-01/15.
44
Mark Drumbl, “The Ongwen Trial at the ICC: Tough Questions on Child Soldiers”, Open
Democracy, 14 April 2015 (available on its website).
45
Erin Baines, Buried in the Heart: Women, Complex Victimhood and the War in Northern
Uganda, Cambridge University Press, 2016, p. 3.

tion (of torture, for example) but also by creating a direct experience of
what it means to be human with all its complexities and ambiguities.
There is thus a clear need for mediating noble claims of international
criminal law as formulated in the Preamble of the Rome Statute of the ICC
and what this field is actually able to achieve. It is argued here that artistic
expression can assist with this exercise by adding an experiential dimen-
sion to the claims of international criminal justice. In addition to that, art
then becomes a suitable medium for communicating complex truth. It is
possible that re-orienting the rhetoric of international criminal justice to-
wards visual jurisprudence may provide an additional layer of context and
complexity, and thereby contribute to the integrity of the participants of an
international justice process.
12.2.3. The Connection Between Ethics and Aesthetics
Admittedly, the study of integrity initially brings to mind the role of ethics
and not that of aesthetics. 46 This is because ethics, as a branch of philoso-
phy – and religion – deals with human actions and the general principles
guiding these actions. Ethics is outcome-oriented – the goal is to apply
generalized principles to a specific matter in order to attain the result
aligned with a certain moral foundation. In contrast, aesthetics is process-
oriented. It is less concerned with outcomes, but places values on the pro-
cess through which certain action takes place. Aesthetics is, therefore, con-
cerned with thoughtful contemplation. It is not focused on the general prin-
ciples, but rather on the uniqueness of each experience. 47 Why study the
role of aesthetics, one may ask, if it is ethics that supplies us with a ‘code
of conduct’ that we may apply to the situations which require the alignment
of inner guidance with the demands of external rules and values?
The work of Wittgenstein may provide an answer to this question. He
argued that essentially ethics and aesthetics are two sides of the same coin.
Just as they focus on different aspects of the same action (generality versus
specificity; outcome versus process; acting versus experiencing), they do
46
See, for instance, lectures by Dieneke de Vos, “Recent Developments in Ethics Standard-
Setting and Mechanisms in the UN”, CILRAP Films, 1 December 2018 (www.cilrap.org/
cilrap-film/181202-vos/); Shannon E. Fyfe, “Integrity and Prosecutorial Ethics in Interna-
tional Criminal Justice”, CILRAP Films, 1 December 2018 (www.cilrap.org/cilrap-film/
181202-fyfe/).
47
Diané Collinson, “Ethics and Aesthetics are one”, in The British Journal of Aesthetics, 1985,
vol. 25, no. 3, p. 266.

not imply a different set of underlying values. Rather they discuss the very
same process from a different point of venture. 48
In line with this position, this chapter does not denounce the role of
ethics in promoting integrity, but rather suggests an alternative way of per-
ceiving it. To give a concrete example, one may contemplate judicial im-
partiality. One way to look at this principle is through the lens of ethics that
requires judges to apply the law without being influenced by personal con-
victions and biases. This is one of the fundamental elements of due process
and is codified in a variety of human rights instruments as well as the stat-
utes of international courts and tribunals. 49
However, one may also see the application of the same principle as a
process in each particular case. What are the elements inherent in an inter-
national criminal trial that promote judicial impartiality? One can suggest
that certain procedures characteristic of an international trial – such as the
swearing in of judges as they pledge to avoid representing a State or any
other vested interests, their professionally worn attire as well as formalized
conduct in the courtroom, including rising when the judges enter the
room – all emphasize respect to the nature of judicial activity and remind
judges of the need to uphold the principle of judicial independence. Is the
process a trivial matter? Far from it, this chapter argues. Misalignment of
inner guidance and the demands of justice can occur easily depending on
the factual circumstances of the case, ‘triggering’ certain biases in a judge,
which they may not even be conscious of. 50 There may also be situations of
personal fatigue or general policy considerations of expediency of an inter-
national trial. All these factors may compromise judicial impartiality if it is
only formulated as a general principle or a rule. The process whereby this
rule is enforced in practice exists as a constant reminder of the need to up-
hold this principle in each specific case.
12.2.4. The Role of Art in Evoking the Truth-Content
Theodor Adorno, in the famous Aesthetic Theory, acknowledges the diffi-
culty of defining art and chooses to describe it through dialectical exercises
48
Ibid.
49
For example, European Convention on Human Rights, 4 November 1950, Article 6 (https://
legal-tools.org/doc/8267cb); Rome Statute of the International Criminal Court, 17 July 1998,
Article 36(3)(a) (https://legal-tools.org/doc/7b9af9).
50
For a recent example, see Kevin Jon Heller, “Judge Ozaki Must Resign — Or Be Removed”,
Opinio Juris, 29 March 2019 (available on its web site).

by resorting to contradictions, while simultaneously upholding the limit to

these contradictions. Art has two elements: ‘import’ – art’s form and con-
tent – and ‘function’ – the work’s purpose. 51 He then dwells extensively on
the contradiction between the components of import, emphasizing the es-
sential nature of the ‘truth-content’ of art, or the way in which artwork sim-
ultaneously challenges the way things are and suggests how they could
be. 52 Importantly, Adorno underlines the fluidity of art, which exists in re-
lation to what it is not – historical origins of the production. Art’s servitude
to kings and amusement is not to be held against it as its original sin as
“truth exists exclusively as that which has become”. 53 These sets of identi-
fied contradictions give us a sense of the effects of art without necessarily
providing a comprehensive definition. The inquiry into the nature of art
would therefore require a separate study going far beyond the scope of the
present chapter. It is rather the qualities art that can be known and dis-
cussed in conceptual terms.
The ‘truth-content’ of art, then, is an inalienable part of the art-object
and the aesthetic experience of the art. Art reveals truth that is not so easily
captured by formalized knowledge because experiences, such as suffering,
remain foreign to knowledge. 54 Knowledge can subordinate them concep-
tually and provide means for improving certain states, such as amelioration
of suffering, but it cannot express through its own means the experience
without becoming itself irrational. 55 Art and knowledge are thus comple-
mentary in revealing the truth. Art cannot be reduced to rationalistic deter-
minations, but it contains an implicit need for interpretation. 56 By demand-
ing such interpretation, it invites philosophical reflection. According to
Adorno, this alone is the justification of the discipline of aesthetics. 57
It is therefore possible to see art as being complementary to interna-
tional (criminal) law: suffering cannot be understood at the level of analyti-
cal categories, yet it can be described and ameliorated. It is the experiential
dimension brought about by art that allows for deeper internalization of
suffering. The pitfall in this process that Adorno identified in his other
51
Theodor W. Adorno, Aesthetic Theory, Continuum, 1970, pp. 100, 227.
52
Ibid., p. 132.
53
Ibid., p. 3.
54
Adorno, 1970, p. 18, see above note 51.
55
Ibid.
56
Ibid., p. 128.
57
Ibid.

work is the challenge of aesthetic representation removing some of the hor-

rors the depiction or production represents. 58
12.3. Art as a Vehicle of Transformative Change
This section is exploratory in nature in that it investigates the possibilities
of, firstly, viewing international proceedings from the aesthetics point of
view, while examining the implications of this view. Secondly, it briefly
touches upon the prospects of using art as a method of inquiry to gain more
insight into the field of international justice and thus improving the integri-
ty of its stakeholders. Finally, this section examines some practical exam-
ples of interjecting creative expression in the administration of internation-
al justice in the form of reparations.
12.3.1. Viewing International Criminal Proceedings as an Aesthetic
Experience
This sub-section focuses on the application of Finnis’s basic goods theory
directly to an international criminal trial. As already mentioned, interna-
tional criminal law is a sub-field of international law with a strong moral
appeal. It endorses values shared by humanity as a whole by prohibiting the
most heinous conduct in both war and peace. It is an attempt by the interna-
tional community to foster a collective response to evil. A clear example of
how basic human goods are reflected in international criminal law comes
from the provision prohibiting genocide. For the completeness of the pic-
ture, it is important to provide a comprehensive account of how each basic
good, not just aesthetics, discussed by Finnis is reflected in an international
criminal trial. This is to emphasize the connections between different val-
ues.
The legal definition of genocide is found in Article II of the Geno-
cide Convention 59 and is replicated in Article 6 of the Rome Statute of the
58
Theodor W. Adorno, Can One Live after Auschwitz? A Philosophical Reader, Stanford Uni-
versity Press, 2003, p. 252.
59
In the present Convention, genocide means any of the following acts committed with intent
to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Forcibly transferring children of the group to another group.

ICC. This norm clearly protects life as a basic human value. The crime of
genocide sits at the apex of the group of offences with highly traumatic
connotations for future generations. It criminalizes the destruction of indi-
viduals as a collective entity, on the basis of their belonging to a group de-
fined by certain characteristics. This act is particularly heinous for it attacks
persons and denies them their right to exist as a group. Hannah Arendt re-
ferred to genocide as “an attack upon human diversity as such, that is, upon
a characteristic of the ‘human status’ without which the very words ‘man-
kind’ or ‘humanity’ would be devoid of meaning”. 60 The convoluted logic
underlying acts of genocide threatens the whole of humankind due to its
capacity to indoctrinate and turn humans against each other. The dangerous
potential of genocide, historically tested, elevates it to the status of the
most odious international crime.
Genocide is also an attack on sociability or the peaceful co-existence
of humans. The process whereby genocide occurs consists of several
steps. 61 It starts with the feelings of animosity, resentment and fear directed
against individuals based on their belonging to a certain group. These sen-
timents are not endogenous, however, and are usually linked to the ideas
planted ‘from above’ by the authority seeking control or power. One group
is made to believe that the other group is threatening the well-being of the
former. Sometimes, the feelings of mistrust and resentment are mutual be-
tween the groups. The ideology of hate is one of the ways to manipulate
people and make them ‘governable’. As a result of indoctrination, the cul-
ture of blaming others for personal grievances with the potential of escalat-
ing into violence is thus created.
Even if somebody, based on their flawed practical reasonableness,
decides to destroy a group as such for the sake of pursuing other goods, law
would stand in their way as a deterrent. In this case, law overtakes individ-
ual practical reasonableness and becomes a manifestation of the same value
at the community level. Finnis defines practical reasonableness as bringing
intelligence and order into one’s own actions and habits. 62 However, one’s
internal order and decision-making process may come into conflict with the
60
Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, Viking Press,
1965, pp. 268, 269.
61
For more discussion, see, for example, Bert Ingelaere, Stephan Parmentier, Jacques Haers
and Babara Segaert (eds.), Genocide, Risk and Resilience: An Interdisciplinary Approach,
Palgrave, 2013.
62
Finnis, 2011, p. 88, see above note 12.

common good. In specific instances of criminality, the emotional state may

overtake an individual, leading to actions misaligned with practical reason-
ableness. Eric Posner, in his work on “Law and the Emotions”, points to
the neglected role of emotions in legal theory. He contends that people’s
preferences differ depending on whether they are in the ‘calm’ state or af-
fected by emotions. He upholds rationality in both states but claims that
this rationality is consistent with the internal order of preferences dictated
by the emotional state. 63 In such situations, law serves as a ‘common de-
nominator’ for collective intelligence. It remedies internal misalignment
with the external common good.
If the deterrent effect of law for whatever reason does not take effect
and genocide occurs, international criminal law then, in theory and subject
to its multiple limitations, provides for remedies, such as trial and punish-
ment of the responsible person. In this case, law is by no means devoid of
the emotional component. It can be said to express anger as an emotional
response to the violation of community values. Thomas Aquinas in his
teachings insisted that anger does not always lead us astray and can very
well be the consequence of reason. Anger, according to him, can be the in-
strument of virtue when it requires judgment on the nature and degree of
punishment of the offender and an appropriate emotive stance towards him
or her. 64 Law is thus once again relevant to sociability, as an international
criminal trial for the crime of genocide provides for a sense of community
and justice, which are meted out on behalf of international society as a
whole as “a passionate reaction graduated in its intensity”. 65
Criminal trials are instruments of generating knowledge, as one of
their purposes is ascertaining the truth about what happened. Establishing
individual criminal responsibility beyond reasonable doubt is premised on
the sufficiency of evidence and the scrupulous analysis of facts. There is a
certain distinction between ordinary criminal trials focusing on individual
responsibility and legal proceedings targeting mass atrocities, such as gen-
ocide. The latter shape collective memory by looking at a broader picture
of events and contrasting conflicting accounts embedded in political, social
63
Eric A. Posner, “Law and the Emotions”, University of Chicago, John M. Olin Law and
Economics Working Paper No. 103, September 2000, pp. 2–5.
64
Gregory M. Reichberg, Thomas Aquinas on War and Peace, Cambridge University Press,
2016, p. 92.
65
Émile Durkheim, The Division of Labour in Society, 1893, p. 52.

and religious frameworks. 66 The knowledge produced by international tri-

als is thus of a broader nature.
It is thus possible to conceptualize international criminal trials as rit-
ual-like social performances. 67 Such vision of justice resonates with the
basic human good of play. Play is understood here as a process. Jeffrey Al-
exander’s conceptualization of social performances is useful to explain this
point. 68 He argues that a social performance consists of a number of ele-
ments, including actors, scripts, background representations, and audience.
In simpler societies, these elements are fused, or tightly linked to each oth-
er. Religious rituals are examples of social performances when the audi-
ence does not need to be convinced because it already shares the beliefs
that the actors are transmitting. With increasing social complexity, the ele-
ments of any social performance become de-fused. The successful social
performance re-fuses the elements by bringing them together in a coherent
fashion. Failure to do so may render the social performance unconvincing,
thus obstructing the delivery of the symbolic integrative message indented
by the cultural practice in question. 69
The first international prosecutions of genocide at the ICTY and the
ICTR were undoubtedly social performances carrying a strong message of
condemnation and giving effect to the values agreed upon internationally. 70
Criminal punishment resulting from this process is a manifestation of the
other-directedness of justice in a sense that it remedies the situation from
the other end by evoking retribution aimed at atonement. The administra-
tion of justice, especially at the international level, is a highly regulated and
highly emotive performance that relies on actors, script and audience.
The connection between the prohibition of genocide and religion as a
basic human value is rather straightforward. The divinity of life has been
one of the reasons for the initial criminalization of murder in the context of
ordinary criminal law. Genocide as an attack on diversity with the potential
66
Ruti G. Teitel, Transitional Justice, Cambridge University Press, 2010, p. 72.
67
Marina Aksenova, “The Role of ICT in Historical Accounts of Genocide”, in Uladzislau
Belavusau and Aleksandra Gliszczyńska-Grabias (eds.), Law and Memory: Towards Legal
Governance of History, Cambridge University Press, 2017, p. 57.
68
Jeffrey C. Alexander, “Cultural Pragmatics: Social Performance between Ritual and Strate-
gy”, in Jeffrey C. Alexander, Bernhard Giesen and Jason L. Mast (eds.), Social Performance:
Symbolic Action, Cultural Pragmatics and Ritual, Cambridge University Press, 2006, p. 32.
69
For more on this topic, see Aksenova, 2017, see above note 67.
70
Alexander, 2006, p. 58, see above note 68.

of the destruction of the whole portion of the population magnifies the

harm of murder. In terms of functionality, one can also see clear parallels
between a criminal trial and a religious ritual. Émile Durkheim, looking for
moral foundations of the legal order, turned to religion as a system of
communication of ideas and sentiments. For Durkheim, religion consists of
acts that have the object of perpetually making and remaking the souls of
the collectivity and of individuals; thus, its function is to strengthen the
bonds attaching the individual to society. 71 International criminal trials, alt-
hough secular in nature, also promote a similar value-based system and
serve as a glue for individuals across countries, who share their moral out-
rage at the crime of genocide.
Finally, there is a powerful interaction between aesthetics and the le-
gal prohibition of genocide. It is clear that international criminal trials em-
body a very strong sense of aesthetics, which becomes apparent if one
looks at the attributes of an international criminal trial. Procedurally speak-
ing, they run according to a strict script, which approximates them to a the-
atrical performance. The judges wear carefully designed robes. The ICC’s
physical premises were constructed with the idea of justice and transparen-
cy in mind. 72 All of the participants in the process rely on powerful emotive
rhetoric in their arguments. For instance, the ICTY judges reserved particu-
larly strong statements for genocide as compared to other crimes in the
Statute. The judgment against Radoslav Krstić – the first person convicted
of genocide at the ICTY – delivers a powerful message of condemnation of
this crime pointing to its particular heinousness: “[a]mong the grievous
crimes this Tribunal has the duty to punish, the crime of genocide is singled
out for special condemnation and opprobrium”. 73
These aesthetical attributes of international criminal law do not only
serve the practical purpose of bringing order to the process of the admin-
istration of justice, but also stress the importance of the values claimed by
the discipline. This point of view of international criminal justice allows
strengthening integrity of its stakeholders by highlighting the elements that
71
Émile Durkheim, The Elementary Forms of the Religious Life, George Allen & Unwin,
London, 1912, p. 471.
72
ICC, “The ICC has moved to its permanent premises”, press release, 14 December 2015,
ICC-CPI-20151214-PR1180.
73
International Criminal Tribunal for the former Yugoslavia (‘ICTY’), Prosecutor v. Radislav
Krstić, Appeals Chamber, Judgement, 19 April 2004, IT-98-33-A, para. 36 (https://legal-
tools.org/doc/86a108).

comprise the system and make it operational. This view serves as a re-
minder of why international criminal law exists in the first place and what
its overall objectives are.
Moreover, the strong aesthetic element embedded in the field of in-
ternational criminal justice complements the production of knowledge by
the courts through judgments and decisions. Aesthetics allows revealing an
additional layer of truth about suffering through artistic expression. As dis-
cussed in the previous section, truth-content is an inalienable part of the
art-object and the aesthetic experience of the art, according to Adorno.
12.3.2. Methodological Advantages of Using Art in the Field of
International Justice
From a methodological perspective, art may serve as a method of inquiry
with the purpose of illuminating aspects of the field of international justice
currently concealed from view.
The thought of exploring the instrumental dimension of art is not new,
as art has been used for educational purposes since as early as in the times
of the Renaissance. In the field of politics, art is frequently employed to
question dogmatic ideas and reach out to diverse segments of the popula-
tion. For instance, Chinese artist AI Wei Wei drew attention to the refugee
crisis by wrapping a Florentine Palazzo in orange lifeboats during his 2016
exhibition there. In addition to that, visual methods are used in discourse
analysis, which can be studied through documentary or historical images
with other forms of data. 74 More generally, sociology has started taking the
‘visual’ more seriously with the ongoing research on the promise of visual
methodology as an alternative way of scientific inquiry. 75
Such a turn has not yet occurred in the study and practice of law, a
discipline which remains focused entirely on texts and the written word.
One can imagine, however, how undertaking art projects aimed at promot-
ing international (criminal) law values, such as integrity, can contribute to
the study of the discipline as such. Creative expression can bring to light
the aspects of this field long ignored by traditional approaches. For in-
stance, an exhibition dedicated to the work of the ICC may evoke respons-
es in the general public indicative of the new solutions to practical prob-
74
Gillian Rose, Visual Methodologies: An Introduction to Researching with Visual Materials,
third edition, Sage, 2012.
75
Ibid.

lems faced by the Court. The ICC took its first steps in this direction in
2018 by partnering with the National Geographic photographer Marcus
Bleasdale in organizing an exhibition entitled “Healing, Trauma and Hope”.
The exhibition took place on the ICC premises in The Hague and at the
United Nations Headquarters in New York and is available online at the
time of writing. 76 It is important to note, however, that precise impact of
such creative outreach activities has not yet been fully studied. 77
12.3.3. Practical Example of Using Art in International Criminal Law
This sub-section explores the practical ways in which art and creative ex-
pression can be interjected in the process of administration of international
justice. International criminal law and its emerging system of reparations is
chosen to illustrate the point. In this example, the ultimate goal of engaging
with art is promoting reconciliation in the affected communities. 78 While
the purpose of strengthening integrity is not directly covered in the follow-
ing discussion, it is fair to assume that exploring the ways of enhancing
international justice through alternative means has direct impact on the in-
tegrity of its actors. As discussed in the introduction, lack of integrity often
stems from the lack of alignment of inner values and their outer expression.
Arguably, the more instruments international justice has at its disposal, the
more clarity its various stakeholders will benefit from. Seeing positive
change in the communities and focusing on the core values of the disci-
pline can facilitate better judgment in individuals.
The practice of reparations is one clear entry point where interna-
tional justice starts accepting the deployment of creative expression. While
the old generation of international criminal courts and tribunals placed little
emphasis on reparations and victim participation, the ICC together with
Extraordinary Chambers in the Courts of Cambodia (‘ECCC’) are pioneer-
ing the idea of inclusivity of victims’ concerns in international criminal
proceedings. Pursuant to Article 75(1) of the Rome Statute of the ICC, the
Court may order reparations to victims, in the form of restitution, compen-
sation and rehabilitation. This list is not exhaustive as the Court may select
76
ICC, “Trauma, healing and hope” (available on its web site).
77
Fiana Gantheret, “The Use of Artistic Productions as a Transitional Justice Mechanism in
the Context of International Criminal Justice and the Misuse of International Tribunals’
Mandates”, Art and International Justice Blog, 1 July 2019.
78
Rachel Kerr, “The ‘Art’ of Reconciliation’, FICHL Policy Brief Series No. 78 (2017),
TOAEP, Brussels, 2017 ( http://www.toaep.org/pbs-pdf/78-kerr/).

reparations with symbolic, preventative and transformative value. 79 Repa-

rations give victims a chance to reclaim their story and their dignity. In the
practice of reparations, criminal law is called upon to fulfil its secondary
functions, that is, to bring back the equilibrium not through pure coercion
but also through its persuasion. The clear challenge, of course, is how to
repair the irreparable
Reparations have thus potential to become one of the vehicles of rec-
onciliation as the ICC orders symbolic reparations to honour the losses suf-
fered by the community and individuals. Symbolic reparations therefore do
not aim to bring back what has been forever lost, but rather acknowledge
the importance of the values harmed by the crimes. Implementation of such
orders will be, to a large extent, an artistic exercise. It is through these
symbolic measures, with artistic underpinnings, that the layer of truth about
suffering can reveal itself.
Two reparation orders issued by the ICC clearly demonstrate the link
between reparations and reconciliation. Firstly, in Lubanga – the case deal-
ing with the recruitment of child soldiers – the judges expressly acknowl-
edged that the objectives of rehabilitation, reconciliation, and reintegration
of former child soldiers might be accomplished through symbolic and
transformative reparations. 80 The Lubanga order on reparations explicitly
states that “reparations should aim at reconciling the victims with their
families and the affected communities”. 81 The Trust Fund for Victims – the
ICC body tasked with implementing reparations orders – now faces a real
challenge in explaining how reconciliation and reintegration should be un-
derstood for the purposes of symbolic reparations initiatives in the specific
context of this case. Based on their work in the affected communities, the
experts concluded that crimes against children are often committed with
the acceptance of the broader community. Thus, what is really needed in
terms of memorialization or any other symbolic initiative is awareness-
79
ICC, Situation in the Democratic Republic of Congo, The Prosecutor v. Germain Katanga,
Trial Chamber, Order for Reparations Pursuant to Article 75 of the Statute, ICC 01/04-01/07,
24 March 2017, para. 297 (https://legal-tools.org/doc/63d36d).
80
ICC, Situation in the Democratic Republic of Congo, The Prosecutor v. Thomas Lubanga
Dyilo, Appeals Chamber, Order for Reparations (amended), 3 March 2015, ICC-01/04-
01/06-3129-AnxA, para. 67 (https://legal-tools.org/doc/df2804).
81
Ibid., para. 46.

raising within this broader community about the harm inflicted on children
as a result of their inscription in the armed forces. 82
The use of symbolic rehabilitative measures can also be seen in the
Al Mahdi case, in which the ICC pronounced on the appropriate reparations
in cases of the destruction of cultural heritage. This case is unique because
artistic expression is not only a tool for reparations, but also the value pro-
tected by the principles of international criminal law. The reparations order,
issued in August 2017, found Mr. Al Mahdi, who orchestrated the demoli-
tion of ten shrines of historical and cultural significance in Timbuktu, Ma-
li, 83 liable for EUR 2.7 million for damage caused by the attack. 84 The
Court emphasized the emotional distress caused to the Timbuktu communi-
ty as a whole by the destruction of the shrines. 85 The ICC further stressed
the inherent, unique and sentimental value of most cultural property and
cultural heritage because of their purpose and symbolism. 86
Thus, the mental anguish caused by its obliteration is addressed on
an individual level by compensation and on a collective level by symbolic
rehabilitative measures, such as memorial, commemoration or forgiveness
ceremony. The aim is to grant public recognition to the harm suffered by
the Timbuktu community. 87 The Court also focused on Mr. Al Mahdi’s
apology, which it found to be “genuine, categorical and empathetic”. 88 As a
symbolic measure with potential reconciliatory impact, the judges ordered
the excerpt from the trial containing an apology be put on the Court’s web
82
ICC, Situation in the Democratic Republic of Congo, The Prosecutor v. Thomas Lubanga
Dyilo, Trial Chamber II, Public Redacted version of Filing regarding symbolic collective
reparations projects with Confidential Annex: Draft Request for Proposals, ICC-01/04-
01/06-3223-Conf, 19 September 2016, ICC-01/04-01/06 (https://legal-tools.org/doc/
401740).
83
Marina Aksenova, “The Al Mahdi Judgment and Sentence at the ICC: A Source of Cautious
Optimism for International Criminal Justice”, EJIL: Talk!, 13 October 2016 (available on its
web site).
84
ICC, Situation in the Republic of Mali, The Prosecutor v. Ahmed Al Faqi Al Mahdi, Trial
Chamber, Reparations Order, 17 August 2017, ICC-01/12-01/15, para. 134 (https://legal-
tools.org/doc/02d1bb).
85
Ibid., para. 90.
86
Ibid., para. 22.
87
Ibid., para. 90.
88
Ibid., para. 70 (citing Trial Judgment, paras. 103–05).

site accompanied by the corresponding transcript translated into the prima-

ry local languages. 89
In the same vein, the ECCC accepted as a form of reparations a clas-
sical dance production and a related exhibition addressing the crime of
forced marriage committed during the Khmer Rouge regime. 90 Courts and
tribunals are thus now beginning to acknowledge the reconciliatory poten-
tial of art and creative expression explicitly, yet further research is needed
to understand how art can be used to achieve these goals.
12.4. Conclusion
This chapter argued that art and aesthetic studies are useful tools in promot-
ing integrity in international justice because of their process-oriented nature
and focus on subjectivity. Contemplative reflection inherent in aesthetics
increases mindfulness and invites self-inquiry. More specifically, this con-
tribution focused on the function of art as the ‘connector’ of inner values
and external action. It is possible to justify the study of aesthetics in the
field of international justice by relying on a number of theoretical frame-
works, including visual jurisprudence and natural law theory. Furthermore,
there are several concrete ways in which art can be integrated into the study
of international justice. One possibility is viewing international (criminal)
trials as ritualistic performances, unfolding based on a certain script. The
robes worn by the participants in the process, the public nature of a hearing,
the dramatic undertones are all there to serve as a reminder of the values at
stake. Aesthetics becomes a bridge connecting the physical manifestation
of a criminal trial with what it is supposed to represent. It is also the lan-
guage spoken by those involved in the process.
89
90
Extraordinary Chambers in the Courts of Cambodia, The Prosecutor v. Nuon Chea and
Khieu Samphan, Trial Chamber, Civil Party Lead Co-Lawyers’ Final Claim for Reparation
in Case 002/02 with Confidential Annexes, 30 May 2017, E457/6/2/1, para. 30 (https://legal-
tools.org/doc/876df7).

PART III:
ROLE OF INTERNATIONAL ORGANIZATIONS AND
STATES
13
______
Institutional Ethics, Individual Integrity, and
Sexual Harassment:
Recent Developments in Ethics Standard-Setting
and Mechanisms at the United Nations
Dieneke T. de Vos *
13.1. Introduction
Questions of ethics and integrity should be at the core of justice institutions,
whether at a national or international level, yet they are often either ne-
glected or, more likely, simply presumed to exist. Integrity is often seen as
something one simply ‘has’ (or ‘has not’). Yet, when asked what it means
to ‘have’ integrity, various definitions are likely to be offered, depending on
one’s viewpoint or the nature of the institution.
For example, during discussions in 1998 around revisions to the
United Nations Staff Regulations and Rules and the possible adoption of a
United Nations (‘UN’) Code of Conduct, one UN representative stated that
of the three staff requirements set out in Article 101 of the UN Charter (ef-
ficiency, competence and integrity), integrity “was the most difficult to
measure in relative terms” and as such needed further definition. 1 Con-
trastingly, other representatives stated that “Member States would not pro-
pose candidates lacking in integrity” and that as such, “there was no need”
for these regulations to expand upon this term. 2 In other words, integrity
*
Dieneke T. de Vos is currently Integrity Lead with Oxfam Novib, where she heads the or-
ganization’s integrity unit, which is responsible for the prevention of and response to allega-
tions of sexual harassment, sexual exploitation and abuse, child abuse, and corruption mis-
conduct. Dr. de Vos was previously an Ethics Officer with the United Nations and has
worked for various other international organizations in the field of international justice. Dr.
de Vos received her Ph.D. in international criminal law from the European University Insti-
tute. All views expressed in this chapter are the author’s own, and do not necessarily repre-
sent those of her current or past employers.
1
Comments of the International Civil Service Commission on the report of the Secretary-
General entitled “Proposed United Nations Code of conduct” (A/52/488), Addendum to Re-
port of the International Civil Service Commission for the year 1997, UN Doc.
A/52/30/Add.1, 20 May 1998, para. 28 (https://www.legal-tools.org/doc/7fp24a/).
2
Ibid., para. 34.

was simply presumed to exist, an inherent quality of those deemed suitable

for the international civil service. Similarly, while the Rome Statute pro-
vides that its senior officials, such as the Prosecutor, the Deputy Prosecutor,
and the Judges, must be of “high moral character”, 3 it fails to actually de-
fine the criteria that should be used to asses one’s moral suitability for the
job, thus leaving the meaning of integrity, or high-moral character, open to
interpretation. 4
While the focus of the conference preceding the publication of this
book was understandably on the integrity of individual actors within inter-
national justice institutions, this chapter argues that distinguishing ‘indi-
vidual’ integrity from ‘institutional’ integrity is somewhat arbitrary. Of
course, the institutions we study and speak of are made up of those very
individuals to whom we seek to ascribe this superior quality of integrity or
high moral character; the integrity with which these individuals perform
their duties thus undoubtedly affects and shapes the (perceived) integrity of
the institutions these individuals serve. Yet, how such individual integrity
manifests itself or what it is understood to mean is ultimately shaped by the
integrity of the institution, and in particular by the institutional mechanisms
and structures (the “ethics infrastructure” 5) put in place to ensure individu-
3
Rome Statute of the International Criminal Court, 17 July 1998, Articles 33(3)(a), 42(3),
43(3) and 44(2) (‘ICC Statute’) (http://www.legal-tools.org/doc/3758e4/).
4
The interpretation of the ‘high moral character’-requirement has gained particular promi-
nence during the 2020 election of the third chief Prosecutor of the International Criminal
Court. See, for example, Eric Witte, “By Failing to Screen ICC Prosecutor Candidates for
Sexual Misconduct, States Put Court at Risk”, International Justice Monitor, 9 March 2020
5
The term ‘ethics (or ethical) infrastructure’ was first coined by Ted Schneyer in his work on
the legal profession in the United States. He focused primarily on understanding ‘law firm
discipline’, which was defined as a system of compliance with professional conduct rules: a
set of organizational systems, procedures, policies and incentives that promote desirable be-
haviour and discourage unethical conduct. See, for example, Ted Schneyer, “Professional
Discipline for Law Firms?”, in Cornell Law Review, 1991, vol. 77, no. 1, pp. 1–46; Ted
Schneyer, “A Tale of Four Systems: Reflections on How Law Influences the Ethical Infra-
structure of Law Firms”, in South Texas Law Review, 1998, vol. 39, pp. 245–277. This chap-
ter, however, follows Parker et al. (2008) in arguing for a broader understanding of the term
‘ethics infrastructure’ that “incorporates informal management policies and work cultures
(not just formal management policies) and the promotion of ethical dialogue and values (not
just compliance with professional conduct rules)”. Christine Parker, Adrian Evans, Linda
Haller, Suzanne Le Mire and Ried Mortensen, “The Ethical Infrastructure of Legal Practice
in Larger Law Firms: Values, Policy and Behaviour”, in UNSW Law Journal, 2008, vol. 13,
no. 1, p. 160 (fn. 6).

Recent Developments in Ethics Standard-Setting and Mechanisms at the United Nations
als within those institutions understand what it means to act with the re-
quired integrity in that particular institutional context.
This chapter thus focuses on this linkage between the institution and
the individual by examining the ethics infrastructure of the UN. The first
part will set out the UN’s regulatory framework around (individual) con-
duct and behaviour. This section thus focuses on what individual integrity
means in a UN institutional context, and how it is shaped by and given
meaning through established rules and regulations. It will try to answer the
question: what does it mean for international civil servants to ‘have’ integ-
rity under the UN’s ‘regulatory’ ethics infrastructure? The second part of
this chapter will then turn its focus to some of the institutional mechanisms
developed to help shape and ultimately enforce the UN’s standards around
individual integrity – the UN’s ‘institutional’ ethics infrastructure. In par-
ticular, this section will seek to understand the function of the UN Ethics
Office in safeguarding both the integrity of the institution itself and the in-
tegrity of its individual staff members and will illustrate a number of con-
crete institutional mechanisms established by and/or under the guardian-
ship of the UN Ethics Office.
However, as the third and final part of this chapter argues, examining
the UN’s regulatory and institutional ethics infrastructure presents an in-
complete picture. Sections 13.1. and 13.2. of this chapter illustrate that the
UN has a range of rules and regulations, and enforcement and compliance
mechanisms around expected standards of behaviour of international civil
servants vis-à-vis external parties linked to organizational and reputational
risks. Fewer structures, exist, however, to address interpersonal conduct
within the organization. The UN’s ethics infrastructure has prioritised rules,
systems and structures to address unethical behaviour that constitute mis-
conduct against the institution, that is, violations against the organization’s
(public or financial) interests such as fraud and corruption, over unethical
actions that firstly harm individuals and harm the institution secondarily
(such as sexual harassment, bullying and discrimination). The third and
final part of this chapter thus focuses on this gap in the UN’s ethics infra-
structure, which has gained increased attention in the past years: sexual
harassment as a serious breach of both individual and institutional integrity.
It argues that an organizational ethics infrastructure designed to give mean-
ing to, and shape, individual integrity must be inclusive of systems and
structures to address interpersonal (mis)conduct.

Ultimately, this chapter argues that integrity in international justice

institutions (or in any organizational context) requires more than the exist-
ence of a regulatory framework and an institutional structure built around
those regulations to encourage ethical behaviour. It requires accountability
for all types of unethical behaviour to exist, not simply on paper, but to be
seen and experienced in the daily reality of institutions, among its staff and
those they interact with. Advancing institutional ethics and individual in-
tegrity thus requires an ethics infrastructure that is value-based, and that
supports and encourages ethical behaviour through “formal and informal
management policies, procedures and controls, work team cultures, and
habits of interaction and practice”. 6 Such ethical behaviour must become
part of the DNA of an organization, so that the answer to the question what
it means to ‘have’ integrity is rooted both in (1) how individual staff mem-
bers conduct themselves vis-à-vis those outside that organization, and thus
uphold the organization’s external reputation, and in (2) how individuals
treat each other, in line with the values for which international justice or-
ganizations strive in their substantive work. Ultimately, as the last section
of this chapter argues, this requires critically examining, challenging and
changing unequal distributions of power, and associated workplace culture
and practices, within an organization.
13.2. The UN’s ‘Regulatory’ Ethics Infrastructure
Integrity represents one of three core values of the UN (the others being
professionalism and respect for diversity) and constitutes a “paramount
consideration” in the appointment of its staff. 7 In defining what such integ-
rity means in the UN’s institutional context, reference is frequently made to
Dag Hammarskjöld, the UN’s second (and possibly most influential 8) Sec-
retary-General who served from 1953 until his death in 1961. His success
6
Parker et al., 2008, p. 172, see above note 5.
7
Charter of the United Nations, 26 June 1945, Article 101(3) (https://www.legal-tools.org/
doc/6b3cd5): “The paramount consideration in the employment of the staff […] shall be the
necessity of securing the highest standards of efficiency, competence, and integrity” (em-
phasis added).
8
Some argue that Dag Hammarskjöld best personified and personally helped define, or even
gave birth to, what it means to be an international civil servant today. See, for example, The
Ethics of Dag Hammarskjöld, Dag Hammarskjöld Foundation, Uppsala, 2010, p. 4
(available on its web site): “[He] shaped a lasting concept of the role and responsibilities of
the international civil servant, creating standards against which his successors continue to be
measured”.

is often ascribed to his ‘high moral character’, 9 characterised by the impar-

tiality and independence with which he exercised his duties. Such impar-
tiality and independence, particularly from governments and other outside
entities, has come to be seen as the backbone of the international civil ser-
vice. Notably, the UN Charter stipulates that neither UN staff members nor
the Secretary-General may seek or accept instructions from any govern-
ment, person or entity external to the organization and that their conduct
must reflect that independence. Additionally, the international civil service,
by virtue of its international nature, is precisely that: international civil
servants must be international in the discharge of their duties, and, as such,
must be responsible and loyal only to the organization they serve, not to
any national, local or personal interests or entity. 10 The individual integrity
of international civil servants is, in other words, first and foremost shaped
by the independent and impartial (international) character of the mandate
they hold, whereby they must place the values, principles and interests of
the UN above their own.
But what exactly does such ‘integrity’, characterised by independ-
ence and impartiality, mean for international civil servants? Examining in-
tegrity in public administration, Armstrong argues that “integrity refers to
‘honesty’ or ‘trustworthiness’ in the discharge of official duties, serving as
an antithesis to ‘corruption’ or ‘the abuse of office’”. 11 Similarly, the UN
Staff Regulations provide that the concept of integrity for UN staff mem-
bers “includes, but is not limited to, probity, impartiality, fairness, honesty
and truthfulness in all matters affecting their work and status”. 12 Accord-
ingly, it is generally understood that integrity relates to the (exemplary)
conduct or behaviour that is expected of (international) civil servants at all
9
Guy Fiti Sinclair, “The International Civil Servant in Theory and Practice: Law, Morality,
and Expertise”, in European Journal of International Law, 2015, vol. 26, no. 3, pp. 755–756.
10
Staff Regulations and Rules of the United Nations, Secretary General’s Bulletin
ST/SGB/2018/1, 1 January 2018, Staff Regulation 1.1(a) (‘ST/SGB/2018/1’) (https://
www.legal-tools.org/doc/zn5lba/).
11
Elia Armstrong, “Integrity, Transparency and Accountability in Public Administration: Re-
cent Trends, Regional and International Developments and Emerging Issues”, United Na-
tions Department of Economic and Social Affairs, August 2005, p. 1.
12
ST/SGB/2018/1, Staff Regulation 1.2(b), see above note 10. See also, para. 5 of the 2013
Standards of Conduct, which provide that the concept of integrity “embraces all aspects of
behaviour of an international civil servant, including such qualities as honesty, truthfulness,
impartiality and incorruptibility”. Standards of Conduct of the International Civil Service,
International Civil Service Commission, July 2013.

times. However, simply requiring international civil servants to always act

with such ‘integrity’ without further definition or guidance is likely to
mean different things to different people in different contexts, particularly
in an organisation like the UN, where its staff come from a multitude of
different backgrounds, cultures and countries, and often work in countries
and cultures different from their own. The integrity expected of interna-
tional civil servants has thus been further defined through various rules and
regulations: the UN’s regulatory ethics infrastructure.
The Standards of Conduct for the International Civil Service (herein-
after ‘Standards of Conduct’) were first drafted in 1954 and are intended as
a behavioural and ethical guide for international civil servants that is based
on shared values and principles that must underpin their conduct at all
times, such as incorruptibility, mutual respect, loyalty, independence and
the avoidance of conflicts of interest. 13 In turn, the UN Staff Regulations,
Staff Rules and other administrative instruments set out the obligations –
rights and responsibilities – that derive from these broader values and prin-
ciples. 14 These institutional rules and regulations defining (individual) in-
13
The Standards of Conduct for the International Civil Service were first drafted by the Inter-
national Civil Service Advisory Board in 1954. They have since been revised by the Interna-
tional Civil Service Commission in 2001, and most recently in 2013. The 2013 Standards of
Conduct, which remain in force today, were approved, with effect from 1 January 2013, by
the General Assembly through resolution 67/257 of 12 April 2013 (https://www.legal-
tools.org/doc/y77yzh/). The Standards of Conduct set out the principles that must define the
relationship between staff members and their organisations (for example, loyalty, mutual re-
spect, and an enabling environment), the relationship between international civil servants
and outside entities, in particular governments (for example, independence, neutrality and
incorruptibility), and the principles underpinning staff members’ personal conduct (for ex-
ample, respect for different cultures, avoiding conflicts of interest, and not abusing their
power).
14
See, in particular ST/SGB/2018/1, Chapter I of the Staff Regulations (Regulation 1.2) and
Chapter I of the Staff Rules (Rule 1.2), see above note 10. The UN Staff Regulations and
Staff Rules, like the UN Charter, are applicable to all UN staff members, including those of
the separately administered funds and programmes. For other categories of personnel who
do not fall within the scope of the Staff Regulations and Rules, such as experts on mission,
separate policies have been adopted setting out similar conduct requirements. See, for ex-
ample: “Regulations Governing the Status, Basic Rights and Duties of Officials other than
Secretariat Officials, and Experts on Mission”, Secretary-General’s Bulletin ST/SGB/2002/9,
17 June 2002, Regulation 2 (‘ST/SGB/2002/9’) (https://www.legal-tools.org/doc/abt35z/);
“Consultants and individual contractors”, Administrative Instruction ST/AI/2013/4, 19 De-
cember 2013, Sections 5.5-5.6 (‘ST/AI/2013/4’) (https://www.legal-tools.org/doc/k3vfax/);
“Gratis personnel”, Administrative Instruction ST/AI/1999/6, 28 May 1999, Section 11
(‘ST/AI/1999/6’) (https://www.legal-tools.org/doc/lsqcgc/); “The UN internship pro-
gramme”, Administrative Instruction ST/AI/2014/1, 13 January 2014, Section 6.2

tegrity can generally be divided into two categories. Firstly, the rules and
regulations that define international civil servants’ impartiality and inde-
pendence from outside entities, in particular, governmental or other politi-
cal actors; and, secondly, the rules and regulations governing the private
affiliations and personal conduct of international civil servants. This regu-
latory ethics infrastructure thus delineates the behaviour expected of inter-
national civil servants because of their status, including the limitations that
attach thereto, in particular in their engagement with outside entities.
Most of the Staff Rules and Regulations prescribing staff members’
independence and impartiality revolve around the principle that interna-
tional civil servants are not, in any way, representatives of governments or
other outside entities, nor are they proponents of their policies. 15 As the
Standards of Conduct explain, their impartiality requires international civil
servants to act with the greatest tact and discretion. Moreover, it implies
tolerance and restraint in expressing opinions particularly on controversial,
political or religious matters as “international civil servants do not have the
freedom of private persons to take sides or to express their convictions
publicly on controversial matters, either individually or as members of a
group, irrespective of the medium used”. 16
As a result, there are certain things one must leave at the door when
entering the international civil service. Notably, while the UN respects the
inviolability of staff members’ personal opinions, including political or re-
ligious, as international civil servants, UN staff members must not act in a
manner that could reflect adversely upon the interests of the organization or
upon the independence, impartiality and integrity required by their status as
international civil servants. 17 Accordingly, while UN staff members may
exercise their right to vote, may be a member of a political party or make
normal financial contributions to political parties, they may not stand for
election and their participation in certain activities, such as making public
pronouncements on controversial issues in a personal capacity, or cam-
paigning or fundraising on behalf of a political party, individual or outside
(‘ST/AI/2014/1’) (https://www.legal-tools.org/doc/7arli8/); and the UNV Code of Conduct

provided in sections 2 and 3, respectively, of the Conditions of Service of International UN
Volunteers and of National UN Volunteers (available on UN Volunteers web site).
15
Standards of Conduct for the International Civil Service, para. 8, see above note 12.
16
Ibid., para. 9.
17
ST/SGB/2018/1, Staff Regulation 1.2(f), see above note 10.

entity are restricted or prohibited. 18 UN staff members must not criticise or

try to discredit a particular government, and are required at all times to
avoid any action that might impair the organization’s relationship with
governments. 19
Pursuant to their oath of office, UN staff members pledge to dis-
charge their functions and regulate their conduct with the interests of the
organization only in view and they accept that loyalty to the aims, princi-
ples and purposes of the UN, as set forth in its Charter, is a fundamental
obligation. 20 Accordingly, staff members shall not engage in any activity in
their private lives that is incompatible with the proper discharge of their
duties with the UN. A reputational risk may, for example, arise in situations
in which the policies, positions and specific actions of an outside entity, or
its affiliated entities or personnel, are not consistent with or contrary to
those of the UN. A UN staff member’s affiliation with such an entity may
then reflect adversely upon the UN and thus on their required integrity. For
this reason, UN staff members must seek the Secretary-General’s prior ap-
proval to engage in any outside (that is, non-UN) occupation or employ-
ment or any outside activity that relates to the purpose, activities or inter-
ests of the organization. The latter includes, but is not limited to, accepting
speaking engagements, submitting articles, books or other written material
for publication, issuing statements to the press or taking part in radio or TV
productions. 21 For example, the participation in an academic conference
such as the one preceding the publication of this book, or the publication of
a paper on peace and justice, would require the Secretary-General’s prior
approval for UN staff members because “publicly available statements of
United Nations officials, even in their private capacity, may have a signifi-
cant impact on the image and reputation of the Organization”. 22
18
Ibid., Staff Regulation 1.2(f), (h), Staff Rule 1.2(u); “Charter of the United Nations and the
Convention on the Privileges and Immunities of the United Nations: provisions relating to
the status, basic rights and duties of United Nations staff members, with commentary”, Sec-
retary-General’s Bulletin ST/SGB/2016/9, 21 July 2016 (‘Commentary to the Staff Rules
and Regulations’) (https://www.legal-tools.org/doc/mjxin2/). See also Standards of Conduct
for the International Civil Service, paras. 48–49, see above note 12.
19
Ibid., para. 33.
20
The UN Declaration (or Oath) of Office is set out in ST/SGB/2018/1, Staff Regulation
1.1(b), see above note 10.
21
Ibid., Staff Regulation 1.2(o) and (p); Staff Rule 1.2(s), (t), and (v), see above note 10.
22
Commentary to the Staff Rules and Regulations, Staff Rule 1.2(t), see above note 18.

Although there is no blanket prohibition on outside employment as

such, the Staff Regulations specify that any such outside employment may
only be authorised if: it does not conflict with staff members’ official func-
tions or their status as international civil servants; it is not against the inter-
ests of the UN; and it is permitted by local law. 23 For example, the Com-
mentary to the Staff Regulations explain that “no approval is possible for
outside occupation or employment in governmental service in a political
office, in a diplomatic or other representational post or in any other func-
tion not compatible with the staff member’s continued status as an interna-
tional civil servant”. 24 As such, (political) outside employment would con-
flict with a staff member’s (perceived) independence and impartiality and
thus their integrity.
Besides their independence and impartiality, the integrity of interna-
tional civil servants also requires their absolute incorruptibility. For this
reason, the receipt of gifts, honours, decorations, favours or remuneration
from outside sources is strictly regulated in the Staff Regulations and Rules.
The general rule, subject only to very few exceptions, is that UN staff
members must decline any gifts, honours, decorations or favours, regard-
less of value, that may be offered to them while in the service of the UN, 25
especially where such gifts are presented to them by a source having or
seeking to have a contractual relationship with the organization, 26 or by a
governmental source. 27 On the other hand, staff members may, in certain
exceptional circumstances, request the Secretary-General’s prior approval
to receive gifts, honours, decorations or favours from non-governmental
sources. 28 For example, staff members may generally receive honorary de-
23
ST/SGB/2018/1, Staff Regulation 1.2(p), see above note 10.
24
Commentary to the Staff Rules and Regulations, Staff Regulation 1.2(c), see above note 18.
25
ST/SGB/2018/1, Staff Regulation 1.2(j), (k) and (l) and Staff Rule 1.2(l), (m), (n), (o) and
(p), see above note 10; see also, Standards of Conduct for the International Civil Service, pa-
ras. 50–51, see above note 12. The procedure for seeking approval and/or for reporting un-
anticipated gifts can be found in: “Reporting, retaining and disposing of honours, decora-
tions, favours, gifts or remuneration from governmental and non-governmental sources”,
Administrative Issuance ST/AI/2010/1, 14 January 2010 (‘ST/AI/2010/1’) (https://www.
legal-tools.org/doc/5if6za/). The separately funded agencies, funds and programmes, such as
UNICEF, the United Nations Population Fund (‘UNFPA’) or the United Nations Develop-
ment Programme (‘UNDP’), may have their own procedures for requesting such approval,
although the same requirements apply.
26
ST/SGB/2018/1, Staff Rule 1.2(p), see above note 10.
27
Ibid., Staff Regulation 1.2(j) and (k), and Staff Rule 1.2(l).
28
Ibid., Staff Regulation 1.2(l); Staff Rule 1.2(m) and (n).

grees from recognised academic institutions, 29 provided that they request

the Secretary-General’s prior approval and that such acceptance is not in-
compatible with their status as international civil servants. Again, as with
outside engagements, such approval is required to ensure that no conflicts
of interest or other reputational risks, including to the individual staff
member and the institution’s (perceived) integrity, independence and im-
partiality and in particular their incorruptibility, could arise from the ac-
ceptance of any such honours, gifts or degrees.
While staff members may thus receive certain gifts, honours or deco-
rations from non-governmental sources in exceptional circumstances, the
Staff Regulations are clear that there is no basis for the Secretary-General
to grant any such exception for gifts, honours, decorations or favours from
governmental sources. 30 Accordingly, staff members are required to decline
any such items that may be offered to them by representatives of govern-
ments. Staff may only receive such items from governmental sources in
highly exceptional circumstances, namely where a staff member is present-
ed with an unanticipated gift from a governmental source and refusal of
which would cause embarrassment to the organization; in such instances,
they may receive the item only and expressly on behalf of the organization
and any such items would then have to be reported and entrusted to the
Secretary-General “who will either retain it for the Organization or arrange
for its disposal for the benefit of the Organization or for a charitable pur-
pose”. 31
29
Ibid., Staff Rule 1.2(n). The Commentary to Staff Rule 1.2(n), explains: “the Secretary-
General would normally grant authorization to accept an honorary degree or certificate from
any university or related institution that is recognized as an academic institution by the Sec-
retary-General. For example, no approval would be granted for honours from so-called “di-
ploma mills” or institutions not recognized by a competent national authority”. Commentary
to the Staff Rules and Regulations, see above note 18.
30
Commentary to Staff Regulation 1.2(j): “Staff regulation 1.2 (j) stresses the importance of
the appearance of strict independence and impartiality of staff and thus reaffirms the abso-
lute prohibition on acceptance of benefits from Governments. No exception to this prohibi-
tion beyond staff regulation 1.2 (k) […] is foreseen, and there is no basis for the Secretary-
General to grant approval for acceptance” (emphasis added). Ibid.
31
ST/SGB/2018/1, Staff Regulation 1.2(k), and Staff Rule 1.2(l), see above note 10. See also
the Commentary to the Staff Regulations and Rules, see above note 18. The Secretary-
General may then decide to display such received items in any of the UN’s premises for ed-
ucational or symbolic purposes. “Preservation and Disposition of Gifts and Historical Items”,
Secretary-General’s Bulletin ST/SGB/136, 1 February 1971, provides that articles or items
(including archival or documentary materials) may be displayed or exhibited for educational,
informational and decorative purposes in UN premises or elsewhere. See also, ST/AI/2010/1,

Another key aspect of international civil servants’ incorruptibility,

and thus their integrity, is the requirement to place the organization’s inter-
ests above their own and to avoid at all times any actual, possible or per-
ceived conflict of interest. For instance, staff members may not use their
office “or the knowledge gained from their office” for private gain, finan-
cial or otherwise, or the private gain of third parties, including friends, fam-
ily or those they favour. 32 This includes using confidential or non-public
information for one’s own private advantage or the advantage of a third
party. Quite clearly, sharing (confidential) procurement information about
an upcoming bidding process with a family member or friend to help their
business gain a contract with the UN would be highly inappropriate. The
Commentary to the Staff Regulations explains that the terms ‘family’ or
‘friend’ in this regard “are broad and intended to encompass not only fami-
ly members and friends as normally understood, but also relationships that
are not recognized by the Staff Regulations and Rules as creating a de-
pendency”. 33 Additionally, although giving presents between colleagues is
not in itself prohibited, such gifts may only be offered provided they do not
come with a request or promise to act in a certain way, or to fail to perform
or delay the performance of any official act. 34
Ultimately, key to international civil servants’ incorruptibility is the
avoidance of (even the appearance of) impropriety, including conflicts of
interest. It should be noted that a conflict of interest, as defined in the UN
Staff Regulations and Rules, is not limited to a situation in which a staff
member’s personal interest conflicts with (or is perceived to conflict with)
the interests of the UN or the performance of their duties. It includes a situ-
ation in which a staff member’s personal interest conflicts with (or is per-
ceived to conflict with) their required independence, impartiality and in-
above note 25, and “Honours, gifts or renumeration from outside sources”, Information Cir-
cular, 16 August 2006, ST/IC/2006/31 (https://www.legal-tools.org/doc/j19d4l/).
32
ST/SGB/2018/1, Staff Regulation 1.2(g), see above note 10.
33
Commentary to the Staff Rules and Regulations, Staff Regulation 1.2(g), see above note 18.
34
ST/SGB/2018/1, Staff Rule 1.2(k), see above note 10: “Staff members shall neither offer nor
promise any favour, gift, remuneration or any other personal benefit to another staff member
or to any third party with a view to causing him or her to perform, fail to perform or delay
the performance of any official act. Similarly, staff members shall neither seek nor accept
any favour, gift, remuneration or any other personal benefit from another staff member or
from any third party in exchange for performing, failing to perform or delaying the perfor-
mance of any official act”.

tegrity. 35 Conflicts of interest, whether actual, possible or perceived, can

occur in relation to staff members’ engagement in outside activities, family
relationships, the receipt of gifts or honours, personal investments and as-
sets, post-employment restrictions, personal references, campaigning for
elected office, and pro bono goods and services. 36 All staff members are
required to disclose any actual or possible conflict of interest, which must
be resolved in favour of the interests of the organization. 37 For example,
where a staff member’s affiliation with an outside entity, such as a pro-
posed board membership of an NGO, is deemed to reflect adversely upon
their required independence and impartiality, a staff member may be re-
quired to relinquish that outside engagement while in the service of the UN
to preserve their integrity.
While the UN encourages staff members’ personal development out-
side their work and their engagement with the communities in which they
live, any such engagement with outside entities must not call into question
the UN’s independence and impartiality, or otherwise reflect adversely on
the UN or staff members’ status as international civil servants. These rules
thus seek to instil in staff members the need for exercising discretion in
their engagement with or support for outside entities, in recognition of the
fact that even when they act in a private capacity, they remain representa-
tives of the UN, subject to its Rules and Regulations, and that even their
private conduct may reflect adversely upon the UN and their status as in-
ternational civil servants. In other words, the UN’s regulatory ethics infra-
structure focuses on circumscribing the individual conduct and behaviour
of individual staff members vis-à-vis outside entities as required by their
status as international civil servants: they must put the organization and its
interests above everything else, including their personal convictions, loyal-
ties, affiliations or ideological preferences, and must not be perceived as
being partial to and/or a proponent of any one particular policy, except the
policies of their organization. Indeed, for international civil servants to act
with the required integrity, as characterised by their independence and im-
partiality, means that “they must at all times maintain a broad international
outlook and an understanding of the international community as a
35
Ibid., Staff Regulation 1.2(m) and Staff Rule 1.2(q).
36
Activities of the Ethics Office, Report of the Secretary General, 8 June 2018, UN Doc.
A/73/89, para. 17 (‘UN Ethics Office Annual Report 2017’) (https://www.legal-tools.org/
doc/z8uoqo/).
37
ST/SGB/2018/1, Staff Regulation 1.2(m) and Staff Rule 1.2(q), see above note 10.

whole”. 38 Viewed this way, these integrity requirements ultimately serve to

protect the institutional integrity of the organization by guaranteeing the
incorruptibility and impartiality of its staff members.
Given the multinational, multicultural, multi-ethnic and multi-
generational make-up of the workforce of the UN, however, even with the
existence of a detailed set of rules and regulations around conduct and be-
haviour, the UN cannot simply assume that all staff members have the
same understanding of these requirements of independence, impartiality
and integrity. As such, as important as the existence of regulatory ethics
infrastructure is, investment should also be made in establishing organiza-
tional systems of compliance that reward ethical behaviour and discourage
unethical behaviour: an ‘institutional’ ethics infrastructure.
13.3. The UN’s ‘Institutional’ Ethics Infrastructure
In the early 2000s, the UN faced what some have called the biggest corrup-
tion scandal in the organization’s history: the oil-for-food scandal. 39 This
illustrated that the existence of anti-corruption rules circumscribing indi-
vidual integrity was not sufficient alone to ensure the institution and its civ-
il servants acted with the integrity required of them. This thus prompted a
number of management and other institutional oversight reforms with a
view towards bolstering the organization’s institutional ethics infrastructure.
This included the establishment in 2005 of the UN Ethics Office by then-
38
Standards of Conduct of the International Civil Service, para. 10, see above note 12.
39
The Oil for Food programme was established in 1995 under Security Council resolution 986
to alleviate “the serious nutritional and health situation of the Iraqi population”. The pro-
gramme sought to allow the purchase by Iraq of “medicine, health supplies, foodstuffs, and
materials and supplies for essential civilian needs” through the controlled sale of oil from
Iraq through an escrow system. Security Council resolution 986, “authorization to permit the
import of petroleum and petroleum products originating in Iraq, as a temporary measure to
provide for humanitarian needs of the Iraqi people”, 14 April 1995, UN Doc. S/RES/986
(https://www.legal-tools.org/doc/502a28/). However, following the programme’s official
closure in 2003, in January 2004, serious allegations were made that around 270 persons and
companies sympathetic to Saddam Hussein paid bribes and agreed to pay substantial kick-
backs to the Iraqi government in exchange for their participation in this scheme. A subse-
quent investigation found “a range of lapses, negligence and corrupt practices that allowed
Saddam [Hussein]’s regime to earn as much as $11 billion while under sanctions”: Robert
McMahon, “The Impact of the UN Oil-for-Food Scandal”, Council for Foreign Relations,
2006 (available on its web site). It also pointed to deep flaws in the UN’s oversight of the
administration of the programme.

Secretary-General Kofi Annan. 40 The UN Ethics Office is an independent

office within the UN Secretariat, whose function is to cultivate and nurture
a culture of ethics, integrity and accountability, and thereby to enhance the
trust in, and the credibility of, the UN, both internally and externally. In
doing so, the UN Ethics Office provides five lines of service: (i) providing
confidential ethics advice to staff members; (ii) conducting ethics aware-
ness, outreach and training; (iii) administering the UN financial disclosure
programme; (iv) administering the UN’s policy for the protection against
retaliation for reporting misconduct or for cooperating with an audit or in-
vestigation; and (v) promoting coherence and common ethics standards
across the UN family. 41 It is beyond the scope of this chapter to provide a
comprehensive review and analysis of each aspect of the mandate of the
UN Ethics Office. Instead, this section will seek to highlight a number of
specific initiatives that may provide food for thought as to how to (better)
cultivate an organizational culture of ethics and integrity in other institu-
tional contexts, such as international justice institutions like the Interna-
tional Criminal Court (‘ICC’).
The primary objective of the UN Ethics Office is to assist the Secre-
tary-General in ensuring that all staff members observe and perform their
functions “consistent with the highest standards of integrity required by the
Charter of the United Nations”. 42 As an independent office, the UN Ethics
40
“Ethics Office – establishment and terms of reference”, Secretary-General’s Bulletin
ST/SGB/2005/22, 30 December 2005 (‘ST/SGB/2005/22’) (https://www.legal-tools.org/doc/
a8gm8e/). Several of the separately funded agencies and programmes, such as the UNFPA,
UNICEF, UNDP and the United Nations High Commissioner for Refugees (‘UNHCR’),
have since also established their own Ethics Offices. Rather than canvassing the entire spec-
trum of work of these different Ethics Offices in the UN system, this chapter will focus on
the UN Ethics Office established within the UN Secretariat. The Director of the UN Ethics
Office chairs the Ethics Panel of the United Nations (‘EPUN’), which is comprised of the
Directors of the various ethics offices of the UN system (UNDP, UNICEF, UNFPA, UN-
HCR, the United Nations Office for Project Services, the World Food Programme and the
United Nations Relief and Works Agency for Palestine Refugees in the Near East) and is
charged with ensuring coherence and harmonization in ethics standard setting across the UN
family. The UN Ethics Office continues to provide ethics services to entities which have not
appointed an ethics officer and/or established an ethics office, in accordance with: “United
Nations system-wide application of ethics: separately administered organs and programmes”,
Secretary-General’s Bulletin ST/SGB/2007/11, 30 November 2007 (‘ST/SGB/2007/11’)
(https://www.legal-tools.org/doc/te040l/). See also the web site of the UN Ethics Office for
more information about EPUN (formerly the UN Ethics Committee).
41
ST/SGB/2005/22, para. 3.1, see above note 40.
42
UN Ethics Office Annual Report 2017, para. 2, see above note 36.

Office serves the best interests of the organization, seeking to advance the
integrity of both the institution and that of its staff members. While the UN
Ethics Office provides five lines of service, requests for confidential ethics
advice, in particular on the management and mitigation of conflicts of in-
terest and other reputational risks, constitutes the majority of its work: in
2019, 44 per cent of the requests for service submitted to the UN Ethics
Office were requests for ethics advice. 43 Importantly, requests for ethics
advice are confidential, 44 which allows staff to seek advice and guidance in
confidence concerning ethical dilemmas they may face. By providing ad-
vice to staff members on concrete ethics questions, the Ethics Office helps
staff and the organization proactively and preventatively manage and miti-
gate conflict-of-interest risks and potential reputational harm, and thus
helps safeguard the integrity of both individual civil servants and of the
institution as a whole. In other words, through its advisory function, the
UN Ethics Office constitutes an important institutional mechanism that
gives meaning to and helps shape the interpretation of the UN’s regulatory
ethics infrastructure, including its individual integrity requirements.
In addition to the advice provided at the request of staff members
and/or to management on the mitigation of conflict-of-interest risks or re-
lated ethics concerns, the UN Ethics Office also administers the UN Finan-
cial Disclosure Programme (‘UNFDP’). The UNFDP requires the disclo-
sure of personal assets and affiliations by selected staff members on an an-
nual basis with a view towards assisting staff members and the organization
in identifying, mitigating and managing personal conflict-of-interest risks.
Participation in the UNFDP is determined based on a staff member’s sen-
iority or the substantive nature of their position. Initially, only staff mem-
bers at the Assistant Secretary-General level and above were required to
file financial disclosure statements. 45 However, the financial disclosure
programme was reviewed and expanded significantly in 2006, in part as a
43
Activities of the Ethics Office, Report of the Secretary General, 30 April 2020, UN Doc.
A/75/82, paras. 8, 13 (‘UN Ethics Office Annual Report 2019’).
44
The mandate of the Ethics Office specifically protects the confidentiality of its ethics advice:
“In respect of its advisory functions as set out in section 3.1(c) above, the Ethics Office shall
not be compelled by any United Nations official or body to testify about concerns brought to
its attention”. ST/SGB/2005/22, para. 3.4, see above note 40.
45
See “Financial Disclosure Programme”, Secretary-General’s Bulletin ST/SGB/1999/3, 28
April 1999 (‘ST/SGB/1999/3’) (https://www.legal-tools.org/doc/wnk1hh/).

result of the oil-for-food scandal, 46 and now covers: all senior staff mem-
bers at Director (D-1) level and above; all staff members who are procure-
ment officers or whose principal duties relate to the procurement of goods
or services for the UN; all staff members whose principal duties relate to
the investment of the assets of the UN; other staff members with direct ac-
cess to confidential procurement or investment information; and, all staff
members of the UN Ethics Office. 47 Participation in the UNFDP is manda-
tory; failure to comply may constitute misconduct and will be referred to
the Office of Human Resources Management for possible disciplinary ac-
tion. 48
Staff members required to participate in the UNFDP must disclose in
relation to themselves and their spouse and/or dependent children (if any)
their assets, profits, non-UN income, stock options, gifts and liabilities
(above a certain threshold) in addition to their private affiliations such as
outside activities, leadership or policy-making positions with non-UN enti-
ties, relatives employed within the UN system, or any other activity that
may reflect upon their integrity. 49 In addition, staff members serving on a
“When Actually Employed” (WAE) basis, on a one-dollar-per-year (sym-
bolic) appointment, 50 or on appointments of a short duration must file a
46
The UN’s financial disclosure programme was first established in 1999 to implement the
requirements set out in Staff Regulations 1.2(m) and (n). It was subsequently expanded in
2005 following the conclusions of the Volcker Report about the Oil-for-Food scandal, and
again amended in 2006 following the establishment of the UN Ethics Office. For the rele-
vant administrative documents, see ibid., ST/SGB/1999/3; “Financial Disclosure and Decla-
ration of Interest Statements”, Secretary-General’s Bulletin ST/SGB/2005/19, 25 November
2005 (‘ST/SGB/2005/19’) (https://www.legal-tools.org/doc/th9lb9/), and “Financial Disclo-
sure and Declaration of Interest Statements”, Secretary-General’s Bulletin ST/SGB/2006/6,
10 April 2006 (‘ST/SGB/2006/6’) (https://www.legal-tools.org/doc/58es6q/). The latter re-
mains in force at the time of writing.
47
Ibid., para. 2.1.
48
In its 2017 Annual Report, the UN Ethics Office notes that during the 2017 filing cycle, two
filers failed to submit their statements and were referred to the Office of Human Resources
Management (‘OHRM’). See UN Ethics Office Annual Report 2017, para. 26, see above
note 36.
49
ST/SGB/2006/6, paras. 3.1 and 3.2, see above note 46.
50
WAE and One-Dollar-A-Year contracts are granted only in exceptional circumstances and
are limited to high-level appointments, such as at the level of Assistant-Secretary-General,
Under-Secretary-General, Special Representative, or Special Envoy. See UN General As-
sembly resolution 67/255 ‘Human Resources Management’, UN Doc. A/RES/67/255, 23
May 2013, para. 63 (https://www.legal-tools.org/doc/zq330a/); “Use of ‘When Actually Em-
ployed’ contracts for special representatives, envoys and other special high-level positions”,

declaration of interest statement, which requires them to disclose their out-

side interests in relation to entities with which they may be required to en-
gage in their UN role, leadership or policy-making positions in external
entities, relatives employed within the UN system, as well as other activi-
ties that may reflect upon their integrity. 51 Financial disclosure and declara-
tion of interest statements must be filed upon entry upon duty, and annually
thereafter for as long as a staff member falls within the categories of staff
required to file such statements. In 2019, 6,157 staff members participated
in the UNFDP (compared to around 1,700 filers in 2006). 52 Although some
UN entities administer their own financial disclosure programme, others
have opted to participate in the UNFDP administered by the UN Ethics Of-
fice on a cost-sharing basis. 53 This also ensures a harmonised interpretation
of the financial disclosure requirements and management of conflicts of
interest across all UN entities participating in the UNFDP. The ICC’s fi-
nancial disclosure programme for designated staff members, while separate
from the UN, has also been administered by the UN Ethics Office since
2015. 54
As mentioned, the main purpose of the UNFDP is to assist with the
management and mitigation of conflicts of interest. Additionally, it is an
honour-based system, and staff are expected, in line with their required in-
tegrity, to provide honest, truthful and complete statements to assist the or-
ganization in identifying and managing conflicts of interest. Once state-
ments have been reviewed, which is done by an independent external ser-
vice provider under the general guidance of the UN Ethics Office, 55 and
where conflicts of interest have been identified, staff members will receive
recommendations to manage and mitigate the identified conflict(s) of inter-
est. 56 Ultimately, the purpose is to reinforce the highest standards of ethics
Secretary-General’s Bulletin ST/SGB/283, 29 August 1996; OHRM Guidelines on Use of

One-Dollar-Per-Year Contracts (available on UN’s web site).
51
ST/SGB/2006/6, para. 2.3, see above note 46.
52
53
Ibid., para. 26.
54
See Administrative Instruction ICC/AI/2015/005 of 6 October 2015, implementing Section
6.1 of Presidential Directive ICC/PRESD/G/2014/002 of 13 May 2014 (the ‘ICC’s Anti-
Fraud Policy’).
55
“Activities of the UN Ethics Office”, Report of the Secretary-General, UN Doc. A/71/334,
16 August 2016, para. 23 (https://www.legal-tools.org/doc/uux6c1/) (‘UN Ethics Office An-
nual Report 2016’); UN Ethics Office Annual Report 2017, para. 25, see above note 36.
56
For more information, see the web site of the UN Ethics Office.

and integrity in their personal and professional conduct as required by the

UN Charter. This, in turn, reinforces the integrity of the institution itself.
The UNFDP thus represents another important component of the UN’s ‘in-
stitutional’ ethics infrastructure aimed at safeguarding the organization’s
integrity, and thus maintaining and enhancing public trust in the institution,
through managing individual compliance with the UN’s ‘regulatory’ ethics
infrastructure.
In recognition of the importance of ethical leadership, 57 a number of
additional institutional ethics structures exist to encourage ethical behav-
iour, particularly among senior-level UN officials. For instance, in July
2016, the Secretary-General introduced a pre-appointment declaration-of-
interest form for candidates under consideration for positions at the Under-
Secretary-General and Assistant Secretary-General levels; since July 2017,
this form has also been applied to other senior-level staff in the field such
as force or police commanders. 58 This pre-appointment review is different
to and completely separate from general background checks – rather, it is
an institutional ethics mechanism created to enable the organization to pro-
actively manage conflict-of-interest risks before the entry upon duty of sen-
ior officials. This pre-appointment conflict-of-interest vetting conducted by
the UN Ethics Office has assisted the organization in pre-emptively identi-
fying, managing and mitigating conflicts of interests, and ensures that sen-
ior officials enter the service of the UN responsible only to the organiza-
tion. 59 Newly appointed senior officials are also provided with personalised
ethics briefings by the UN Ethics Office to ensure the right ‘tone at the
top’. 60 Such personalised ethics briefings are important opportunities to
instil in the organization’s leadership the importance of ethical leadership
57
Research has shown that employees who believe their manager behaves ethically are more
likely to behave ethically themselves, are happier in their work, are more committed to their
work, and are more likely to help others. See, for example, David M. Mayer, Karl Aquino,
Rebecca L. Greenbaum and Maribeth Kuenzi, “Who displays ethical leadership and why
does it matter? An examination of antecedents and consequences of ethical leadership”, in
Academy of Management Journal, 2012, vol. 55, no. 1, p. 167.
58
UN Ethics Office Annual Report 2017, paras. 15–16, see above note 36. It should be noted
that UNDP’s Ethics Office makes reference to the development and adoption of a Conflict
of Interest Declaration Form for newly recruited staff members already in its 2014 Annual
Report. Activities of the UNDP Ethics Office in 2013: Report of the Ethics Office,
DP/2014/17, 25 March 2014, para. 4 (https://www.legal-tools.org/doc/4t9ohx/).
59
60
Ibid., para. 62.

and to strengthen their familiarity with the organization’s ethics infrastruc-

ture. This is important because, as Mayer et al. (2012) found, “leaders set
the ethical tone of an organization and are instrumental in encouraging eth-
ical behaviour and reducing interpersonal conflict from their subordi-
nates”. 61
In addition to the abovementioned (internal) institutional ethics
mechanisms, a number of public measures have also been implemented to
increase public trust and confidence in the integrity of the UN. Notably, in
2007, the Secretary-General launched the Voluntary Public Disclosure Ini-
tiative (‘VPDI’), pursuant to which the Secretary-General encourages sen-
ior leaders in the organization at the Assistant-Secretary-General level and
above to publish a publicly redacted version of their financial disclosure or
declaration of interest statement. 62 Contrary to their participation in the
UNFDP, which is mandatory in accordance with the applicable regulatory
framework, participation in the VPDI, as its name suggests, is voluntary.
As the UN acknowledges, participation in the VPDI is an important meas-
ure to demonstrate the personal commitment of senior leaders in the UN to
ethical conduct and principles of integrity; however, the multi-cultural and
often security-sensitive environment in which UN officials operate may not
always make it possible for officials to participate in the VPDI. 63 Nonethe-
less, each year, around 70 per cent of senior officials opt to publish a public
version of their confidential disclosure statement (note that this also in-
cludes senior officials of the ICC). 64 Similarly, while not required, since
2016, the President of the UN General Assembly also makes public a re-
dacted summary of her/his disclosure statement. 65
The focus of these last two initiatives is on the organization’s senior
leadership; this is understandable given, as mentioned, the importance of
61
Mayer et al., 2012, p. 167, see above note 57.
62
See the Policy on Voluntary Public Disclosure by UN staff members of Financial Disclosure
and Declaration of Interest Statements (available on UN’s web site).
63
See the web site of the Voluntary Public Disclosure.
64
UN Ethics Office Annual Report 2017, para. 39, see above note 36: “In 2016, of the 163
senior officials eligible to participate in the voluntary public disclosure initiative, 115 (or
70.6 per cent) did so. In 2017, 95 of the 142 eligible senior officials (or 66.9 per cent) partic-
ipated. Overall participation rates remained largely in line with those in previous years”. In
2019, a little more than 75 per cent of eligible officials participated. UN Ethics Office Annu-
al Report 2019, para. 29, see above note 43.
65
H.E. President María Fernanda Espinosa Garces (the seventy-third President of the UN
General Assembly) is the second President to do so (available on UN’s web site).

ethical leadership for the integrity of an institution. However, the ethics and
integrity requirements, of course, apply to all staff members, regardless of
their seniority within an organization. All UN staff members are required to
disclose possible, potential and actual conflicts of interest and are required
to proactively seek advice from the Ethics Office when they are in doubt. 66
This ensures a certain degree of consistency in the application and interpre-
tation of the UN’s regulatory ethics infrastructure. 67 It also seeks to ensure
conflicts of interest are increasingly identified before they occur, thus pro-
actively managing and mitigating any such reputational risks.
To facilitate a broader understanding of the ethics and integrity re-
quirements across the UN, since 2013, the Executive Office of the Secre-
tary-General jointly with the UN Ethics Office each year launches what are
called the ‘Leadership Dialogues’. The Leadership Dialogues provide a
structured framework around a specific theme for managers to discuss eth-
ics questions with their staff at a dedicated time. The theme, while different
every year, focuses on further developing staff member’s understanding of
their required integrity. For example, the 2017 Leadership Dialogue was
entitled: “Standards of Conduct: What’s expected of me?”. 68 It focused on
the UN standards of conduct and what they mean for being accountable for
one’s actions, making decisions in the best interests of the organization,
and adhering to the organizational regulations, rules and policies in this
regard. Topics covered included organizational priorities relating to the
prevention of sexual exploitation, abuse and harassment, conflicts of inter-
est, the rules around gifts, and staff members’ participation in political ac-
tivities. In 2019, the Leadership Dialogue was entitled “Conflicts of interest:
why do they matter?”. 69 All managers are required to undertake this struc-
tured 1.5-hour dialogue session on an annual basis with their direct reports.
Starting with the Secretary-General, who undertakes the session with his
Under-Secretary-Generals, the Leadership Dialogue thus cascades through
66
Whereas all UN Secretariat staff members are expected and encouraged to seek advice from
the UN Ethics Office when in doubt, in UNDP, staff members are required to first seek eth-
ics clearance from the UNDP Ethics Office before seeking approval from their management
to engage in outside activities. See, “Operating with Unwavering Integrity”, UNDP Code of
Ethics, October 2017, p. 12 (available on UNDP’s web site).
67
The consistency of ethics standards and policies is further strengthened through regular
EPUN meetings and consultations on particularly complex cases or issues having UN-wide
implications. See further note 40, above.
68
See the website of the Leadership Dialogues (available on UN’s web site).
69
Ibid.

the organization and across teams, departments and countries. The UN Eth-
ics Office monitors compliance and is available for further support and ad-
vice as teams embark on their annual Leadership Dialogue exercise. 70 Such
initiatives, which allow managers dedicated time to discuss ethics and in-
tegrity questions with their direct reports, provide an important impetus for
further developing and enhancing the organization’s collective understand-
ing of the ethical challenges that occur in the context of its work, and the
different viewpoints that may exist on how to resolve such challenges.
Such regular conversations form an important part of an organization’s eth-
ics learning, and a deeper “moral learning process”, 71 another important
component of establishing and reinforcing a culture of organizational ethics
and individual integrity.
In other words, a number of institutional mechanisms have been es-
tablished over the years to further enhance understanding of and ensure
compliance by its staff members with the UN’s regulatory ethics infrastruc-
ture, which in turn seek to enhance public trust and confidence in (the in-
tegrity of) the institution itself. More importantly, through its advisory, rep-
utational risk management, and outreach initiatives, the UN Ethics Office
aims to contribute to creating an organizational culture where every staff
member understands and fulfils the requirements of independence, impar-
tiality and integrity, treats everyone with respect and dignity, and fosters a
safe and inclusive working environment for all.
However, as important as regulatory and institutional ethics infra-
structures are, research has shown that the single best predictor of unethical
behaviour is organizational culture, 72 and in particular organizational toler-
ance. Where unethical behaviour is seen to be tolerated (such as where
there are no repercussions or where those repercussions are not publicly
communicated as accountability standards), the overall impact of regulato-
ry or institutional ethics infrastructure on strengthening the (perceived) in-
70
Ibid.
71
On the ‘moral learning process’, see, for example, Dr. Julien Topal, “Installing a Moral
Learning Process: Integrity Beyond Traditional Ethics Training”, Columbia Center for the
Advancement of Public Integrity, 2017 (available on its web site).
72
See, for example, Azish Filabi and Caterina Bulgarella, “Organizational Culture Drives Eth-
ical Behaviour: Evidence From Pilot Studies”, 2018 OECD Anti-Corruption and Integrity
Forum (available on OECD web site); Paula A. Johnson, Sheila E. Widnall and Frazier F.
Benya (eds.), Sexual Harassment of Women: Climate, Culture, and Consequences in Aca-
demic Sciences, Engineering, and Medicine, The National Academies Press, Washington,
D.C., 2018.

tegrity of either individual staff members or the institution as a whole will

be limited. An area where this has been highlighted most prominently in
recent years is in relation to interpersonal (prohibited) conduct and, in par-
ticular, the way in which ethics infrastructures have not focused (sufficient-
ly) on (sexual) harassment as a breach of institutional ethics and individual
integrity. Indeed, as the next section will show, the UN’s ethics infrastruc-
ture is only just beginning to grapple with how to better address the inter-
personal, yet systemic, integrity violations exemplified by sexual harass-
ment.
13.4. Ethics Infrastructure and Sexual Harassment
Just like other institutions, businesses, and entities, the UN is, unfortunately,
not immune to sexual misconduct committed by its staff members. It has
long struggled and continues to struggle, with allegations of sexual exploi-
tation and abuse by peacekeepers of communities and beneficiaries of UN
assistance. 73 Additionally, in recent years, there has been increased recogni-
tion that sexual exploitation and abuse are not restricted to peacekeeping
personnel but are also committed by civilian personnel. 74 Similarly, in large
part due to the #MeToo and #AidToo movements and the courage of many
women and a few men to speak up about the sexual harassment they have
73
Although allegations of sexual exploitation by aid workers first surfaced in 1992 in the con-
text of the UN Mission in Cambodia, the issue was not formally recognised until a 2002 re-
port by Save the Children and UNHCR highlighted widespread sexual abuse of populations
by UN peacekeepers and NGO personnel in West Africa. Accusations included: sexual as-
sault, rape, sex trafficking, organized prostitution rings, abduction, child pornography, and
sex in exchange for food, medicine, employment, and protection. See, Save the Children and
UNHCR, “Sexual Violence and Exploitation: The Experience of Refugee Children in Guin-
ea, Liberia and Sierra Leone”, 1 February 2002. See also, Melanie O’Brien, Criminalising
Peacekeepers: Modernising National Approaches to Sexual Exploitation and Abuse, Pal-
grave MacMillan, 2017; Rosa Freedman, “UNaccountable: A New Approach to Peacekeep-
ers and Sexual Abuse”, in European Journal of International Law, 2018, vol. 29, no. 3,
pp. 961–985; Jasmine-Kim Westendorf, Violating Peace: Sex, Aid and Peacekeeping, Cor-
nell University Press, 2020.
74
For instance, in 2018, of the 55 allegations of sexual exploitation and abuse reported to the
UN peacekeeping operations and special political missions, 38 were against military person-
nel, 4 against police, and 13 against civilian personnel. Additionally, a further 94 allegations
were reported involving UN staff and related personnel of UN entities other than peacekeep-
ing operations and special political missions. See, “Special measures for protection from
sexual exploitation and abuse”, Report of the Secretary-General, UN Doc. A/73/744, 14
February 2019 (and annexes) (https://www.legal-tools.org/doc/e5i9ma/). The United Nations
publishes quarterly updates on allegations of sexual exploitation and abuse and maintains an
up-to-date online database of allegations (available on its web site).

experienced in the UN institutional context, there is now also increased at-

tention for sexual misconduct arising within the workplace and between
UN colleagues, interns, volunteers, and others. Notably, in January 2019,
the results of an internal UN staff survey showed that one in three staff
members reported having been sexually harassed during the preceding two
years. 75 Only one in three respondents who experienced sexual harassment,
however, said they took action, such as reporting the misconduct, pointing
to a lack of trust in formal reporting systems and perceptions of inaction
and impunity for offenders.
These UN statistics do not stand in isolation; similar data and allega-
tions have arisen in recent years in the wider humanitarian, development
and human rights context, such as at Oxfam, 76 Amnesty International 77 and
in law firms, as evidenced by the global survey conducted by the Interna-
tional Bar Association, the results of which were published in May 2019. 78
This latter survey illustrated that in the legal profession, one in three wom-
en and one in fourteen men had been subjected to some form of sexual har-
assment. Respondents reported they had experienced a broad range of sex-
ually harassing behaviours, including sexist or sexually suggestive com-
ments, inappropriate physical contact, such as patting, pinching or brushing
up against someone, sexual propositions, invitations or other pressure for
sex, and demands for sex in exchange for employment or career advance-
ment opportunities. 79 Since writing this chapter, in 2020, allegations of
sexual harassment were also raised in the context of the election of the next
75
“Safe Space Survey on Sexual Harassment in the Workplace Report”, Deloitte (for the Unit-
ed Nations), January 2019 (available on Code Blue Campaign’s web site) (‘Safe Space Sur-
vey Report’). See also, “One in three UN workers say they have been sexually harassed in
past two years”, The Guardian, 16 January 2019 (available on its web site).
76
In February 2018, allegations surfaced in the media about the abuse of vulnerable women by
senior Oxfam officials in Haiti in 2011. Oxfam announced a Ten Point Action Plan to ad-
dress sexual misconduct and accountability, which included the establishment of an Inde-
pendent Commission. The Commission’s Interim Report was published in January 2019 and
its final report in June 2019 (available on its web site).
77
Amnesty International commissioned an external, independent investigation into the circum-
stances following the deaths of two staff members who had taken their own lives while in
the service of the organization. The external investigation report was published in January
2019. “Staff Wellbeing Review”, Amnesty International, January 2019 (available on its web
site) (‘Amnesty International Report’).
78
Kieran Pender, “Us Too? Bullying and Harassment in the Legal Profession”, International
Bar Association, May 2019 (available on its web site) (‘IBA Report’).
79
Ibid., pp. 55–56.

chief Prosecutor of the ICC. 80 This emerging data shows very clearly that
much more work needs to be done not only to improve existing policy
frameworks around sexual harassment to recognise the full spectrum of
behaviours that occur, but also to invest in stronger compliance, regulatory
and institutional ethics infrastructure to address sexual harassment. 81 This
section will thus focus on recent developments at the UN in relation to this
under-researched and emerging area in ethics research and scholarship.
I deliberately call this an ‘emerging area’ because most scholarship
and other ethics research has focused on conflicts of interest, reputational
risk management and other anti-corruption measures as encompassing ‘eth-
ics’ or ‘ethics infrastructure’. For instance, the Organisation for Economic
Co-operation and Development has conducted a number of research pro-
jects and developed various concept papers on governance in public institu-
tions, which define integrity as anti-corruption. 82 Likewise, scholarship on
ethics in the legal profession thus far has focused mostly on inappropriate
and corrupt conduct by lawyers vis-à-vis their clients or the law and courts
more generally. 83 Arguably, even the UN’s ethics infrastructure discussed
above is similarly focused (more) on anti-corruption; notably, the UN Eth-
ics Office’s mandate defines ‘ethical issues’ as “conflicts of interest”. 84
This is perhaps not surprising as the UN Ethics Office, was created in di-
rect response to a corruption scandal. This has, however, meant that the
80
Danya Chaikel, “ICC Prosecutor Symposium: The Next ICC Prosecutor Must Embody In-
tegrity in the #MeToo Era”, in Opinio Juris, 16 April 2020 (available on its web site). See
also, the April 2020 ATLAS Statement to the Committee on the Election of the Prosecutor
and States Parties to the Rome Statute of the International Criminal Court calling for a fair,
transparent and safe procedure for receiving and assessing complaints of misconduct against
candidates for ICC Prosecutor (available on its web site).
81
This section largely focuses on frameworks to address sexual harassment as opposed to oth-
er sexual misconduct such as sexual exploitation and abuse (SEA) by aid workers of the
populations they are working for/with, which has been extensively covered elsewhere. The
author recognizes that this is distinction is arbitrary as sexual harassment, exploitation and
abuse are part of a continuum of sexual violence. For more on SEA, see sources above in
note 73.
82
See, for example, the 2005 OECD policy document, “Public Sector Integrity – A Framework
for Assessment” or its 2018 research paper by Azish Filabi and Caterina Bulgarella, “Organ-
izational Culture Drives Ethical Behaviour: Evidence from Pilot Studies”, 2018 OECD
Global Anti-Corruption and Integrity Forum, 27 March 2018.
83
For an overview, see, for example, Parker et al., 2008, pp. 161–163, see above note 5.
84
ST/SGB/2005/22, Section 3.1, see above note 40: “(c) Providing confidential advice and
guidance to staff on ethical issues (e.g., conflict of interest), including administering an eth-
ics helpline” (emphasis added).

organization has prioritised creating systems and structures to address un-

ethical behaviour that constitute misconduct against the institution, that is,
violations against the organization’s (public or financial) interests such as
fraud and corruption, over unethical actions that firstly harm individuals
and harm the institution secondarily (for instance, sexual harassment, bul-
lying and discrimination). These latter violations are still too often seen as
private or personal issues. This is not unlike the public-private divide that
has been criticised by feminist scholarship in many other areas. 85
Nonetheless, the Standards of Conduct for the International Civil
Service do include various provisions on personal conduct by staff mem-
bers vis-à-vis their colleagues 86 and a number of policies have been adopt-
ed over the years to (start to) address sexual exploitation, abuse, and har-
assment. 87 Contrary to financial misconduct matters, such as fraud, corrup-
tion or conflicts of interest, however, (sexual) harassment, bullying and
discrimination have primarily been understood as constituting management
issues, as opposed to issues of ethics and integrity. For instance, until the
adoption of its updated policy in 2019, the UN’s policy on the prohibition
of discrimination, harassment, including sexual harassment, and abuse of
authority (ST/SGB/2008/5) placed all responsibility for dealing with (sexu-
al) harassment with individual managers and the UN Office of Human Re-
sources Management. 88
85
See, for example, Carole Pateman, “Feminist Critiques of the Public/Private Dichotomy”, in
Stanely I. Benn and Gerald F. Gaus (eds.), Public and Private in Social Life, St. Martin's
Press, New York, 1983; Hilary Charlesworth, “The Public/Private Distinction and the Right
to Development in International Law”, Australian Year Book of International Law, 1988, vol.
12, pp. 1902–04; Hilary Charlesworth, “Feminist Methods in International Law”, in The
American Journal of International Law, 1999, vol. 93, no. 2, pp. 3793–94; Christine Chin-
kin, “A Critique of the Public/Private Dimension”, in European Journal of International
Law, 1999, vol. 10, no. 2, pp. 3873–95.
86
Standards of Conduct for the International Civil Service, paras. 21 and 22, see above note 12.
87
“Special measures for protection from sexual exploitation and sexual abuse”, Secretary-
General’s Bulletin ST/SGB/2003/13, 9 October 2003 (‘ST/SGB/2003/13’) (https://
www.legal-tools.org/doc/ftozsr/); “Prohibition of discrimination, harassment, including sex-
ual harassment, and abuse of authority”, Secretary-General’s Bulletin ST/SGB/2008/5, 11
February 2008 (‘ST/SGB/2008/5’) (https://www.legal-tools.org/doc/ibc9oq/). Since the writ-
ing of this chapter, the UN Secretariat has adopted an updated policy on discrimination, har-
assment, including sexual harassment, and abuse of authority: Secretary-General’s Bulletin
ST/SGB/2019/8, 10 September 2019.
88
Until 2019, under the UN’s policy on (sexual) harassment, senior managers were responsible
for addressing complaints of sexual harassment by establishing a fact-finding panel “of at
least two individuals from the department, office or mission concerned who have been

Sexual harassment is still too often seen as an issue affecting only

individuals, not the institution as a whole, which has predetermined the
way in which it has been addressed (not only at the UN, but in many other
contexts). Yet, as the #MeToo movement has clearly demonstrated, sexual
harassment is rooted in systemic structures of power imbalance and gender
inequality, and is symptomatic of a broader workplace culture that silences
certain truths, experiences and stories. It has become clear that policy
frameworks that emphasise informal or management solutions to individual
cases between affected parties or other individualised management re-
sponses are insufficient to address and redress these structural dimensions
of power and inequality that underpin almost all forms of (sexual) harass-
ment.
The UN has been heavily criticised for the way in which it has ad-
dressed sexual harassment committed by its officials, including in a num-
ber of recent high-profile cases that led to the resignation, and in one case
dismissal, of senior officials. At the end of February 2018, then-Deputy
Director of UNICEF, Justin Forsyth, resigned following controversy over
allegations that he engaged in inappropriate behaviour, including sexual
harassment, in his previous position with Save the Children. 89 That same
month, Luiz Loures, then-Deputy Executive Director at UNAIDS, an-
nounced that he would not seek renewal of his mandate in March 2018. 90
This followed an outcry over the way in which UNAIDS had handled sex-
ual harassment allegations brought against Mr. Loures in November 2016.
An independent review of the agency’s handling of the case was subse-
quently conducted, which heavily criticised the agency’s senior manage-
ment. The report, which was published in December 2018, called for a
change in leadership and criticised in particular Executive Director Michel
trained in investigating allegations of prohibited conduct or, if necessary, from the Office of
Human Resources Management roster”. See ST/SGB/2008/5, section 5. Although a full cri-
tique of the UN’s policy framework around sexual harassment is beyond the scope of this
chapter, it should be noted that best practice in addressing integrity violations is for such al-
legations to be investigated by independent investigators. Individuals who work closely with
the alleged offender of sexual harassment, or with the person targeted, are not generally
deemed to be sufficiently impartial and independent to allow for the fair and transparent de-
cision-making on such matters. As such, the appointment of a fact-finding panel of individu-
als from within a department, office or mission, depending on the size of that department,
office or mission, can be problematic.
89
“Charity boss Justin Forsyth resigns from Unicef”, BBC News, 22 February 2018.
90
“Top UN official accused of sexual harassment stands down”, The Guardian, 23 February
2018.

Sibidé’s “personalised, patriarchal leadership style [that] has […] come at a

significant cost to transparent due process within the UNAIDS Secretariat
and enabled a culture of harassment, including sexual harassment, bullying,
and abuse of power”. 91 In response, Mr. Sibidé, who was due to hold office
until January 2020, offered to resign in June 2019; 92 in May 2019, however,
he unexpectedly announced his resignation with immediate effect. 93 In De-
cember 2018, the Chairman of the International Civil Service Commission,
Kingston Rhodes, also resigned after or during an internal inquiry into al-
legations of sexual harassment against him (the results of that investigation
remain unclear). 94 In September 2018, UN Women dismissed a senior staff
member after an investigation substantiated allegations of sexual miscon-
duct committed by him against younger male staff members in his office. 95
These cases, and the critiques they elicited, illustrate the UN still has a long
way to go to better respond to and ultimately prevent sexual harassment.
Yet, some important first steps have also been made since 2018. In
February 2018, the UN Secretary-General announced a Five Point Plan to
address sexual harassment. The implementation of the plan saw the launch
of a 24-hour Speak Up helpline accessible to staff and non-staff personnel
(for example, interns, consultants and volunteers) to confidentially seek
support when faced with sexual harassment, 96 additional mandatory (online)
training modules on a respectful workplace and the prevention of sexual
harassment, and the appointment of a senior-level task force to spearhead
reforms around sexual harassment policies and procedures. 97 These reforms
included the adoption of a uniform definition of sexual harassment to be
91
“Report on the work of the Independent Expert Panel on Prevention of and response to har-
assment, including sexual harassment; bullying and abuse of power at UNAIDS Secretariat”,
Doc. No. UNAIDS/PCB (43)/CRP1, 7 December 2018, para. 61 (‘UNAIDS Report’).
92
“Under-fire UNAIDS chief offers to resign in June”, in France 42, 13 December 2018.
93
“Damaged in Scandal, Head of U.N. AIDS Agency Resigns Suddenly”, New York Times, 8
May 2019.
94
“Another UN Harassment Case Quietly Disappears”, PassBlue, 6 January 2019.
95
“Statement: Final decision on the sexual misconduct investigation at UN Women”, UN
Women, 18 September 2018 (available on its web site); “Exclusive: Senior UN Official Fired,
Referred to Criminal Authorities for Alleged Sexual Misconduct”, News Week, 17 Septem-
ber 2018.
96
As provided in the UN’s updated policy on (sexual) harassment, the helpline can be reached
at +1 917 367 8910 or, from peacekeeping missions, at +1212 78910. The helpline can also
be reached at speakup@un.org. See ST/SGB/2019/8, above note 87.
97
In November 2017, a senior level taskforce within the UN’s Chief Executives Board was
created to improve the UN system organizations’ responses to sexual harassment.

used across the UN family, which subsequently formed the basis of a UN

System Model Policy on Sexual Harassment adopted by the Chief Execu-
tives Board in October 2018. 98 Additionally, recognising the importance of
accountability for sexual harassment, and thus a need to strengthen systems
to ensure perpetrators of sexual misconduct are not able to move from one
job to another undetected, in June 2018, the UN launched a system-wide
screening database called ‘ClearCheck’ to avoid the re-hiring of individuals
whose working relationship with an organization ends because of a finding
they had perpetrated sexual harassment. As of October 2018, UN system
entities may also opt to include individuals in this database who left an or-
ganization before an investigation or disciplinary process was completed. 99
The UN Model Policy on Sexual Harassment, defines sexual harass-
ment as follows:
Sexual harassment is any unwelcome conduct of a sexual na-
ture that might reasonably be expected or be perceived to
cause offense or humiliation, when such conduct interferes
with work, is made a condition of employment, or creates an
intimidating, hostile or offensive work environment. Sexual
harassment may occur in the workplace or in connection with
work. While typically involving a pattern of conduct, sexual
harassment may take the form of a single incident. In as-
sessing the reasonableness of expectations or perceptions, the
perspective of the person who is the target of the conduct shall
be considered. 100
In its explanatory notes, the model policy further recognises sexual
harassment as “the manifestation of a culture of discrimination and privi-
98
See Annex 4 to “CEB Taskforce on Addressing Sexual Harassment within the Organizations
of the UN system – Progress Report”, UN Doc. CEB/2018/HLCM/14, 3 October 2018
(‘CEB/2018/HLCM/14’). See also, the UN Secretariat’s updated policy ST/SGB/2019/8,
above note 87. Additionally, in July 2019, jointly with member states, the UN launched a
Model Code of Conduct to Prevent Harassment, Including Sexual Harassment, at UN Sys-
tem Events. The International Bar Association in May 2019 announced that it would also
develop a harassment policy specifically applicable to the events and conferences it organiz-
es around the world each year. IBA Report, May 2019, p. 101, see above note 78.
99
CEB/2018/HLCM/14, paras. 22–30, see above note 98. Efforts are also ongoing in the
broader humanitarian and development sector to set up similar misconduct disclosure sys-
tems at an inter-agency level. For more information on this Inter-Agency Misconduct Dis-
closure Scheme, see the website of the Steering Committee for Humanitarian Response.
100
CEB/2018/HLCM/14/Add.1, Annex 4, p. 13, see above note 98.

lege based on unequal gender relations and other power dynamics”. 101 It
also acknowledges the intersectional nature of identities, noting that “pow-
er imbalances based on gender, workplace or educational status, racial or
ethnic backgrounds, age, disability, sexual orientation or economic class
could impact on sexual harassment”. 102 This recognition of sexual harass-
ment as an expression of power inequality is important as it is still too of-
ten underrecognized: sexual harassment (most often) has very little to do
with sex and everything to do with power. Although sexual harassment
does not always constitute an abuse of authority in the professional mis-
conduct understanding of the word (such as a senior manager abusing their
position of authority to gain sexual favours from junior staff, as the behav-
iour can also occur between individuals of similar ‘rank’ in an organiza-
tional hierarchy), sexual harassment always constitutes an abuse of relative
or social power, as it expresses and reinforces existing (gendered and other)
power imbalances and inequalities. 103
The UN’s Model Policy on sexual harassment also acknowledges
that sexual harassment can be verbal, non-verbal and physical, and can oc-
cur between people of the same and of different genders. Importantly, the
policy emphasises the need for support to victims and a victim-centred ap-
proach as well as work on prevention. Involving victims or survivors in the
response to sexual harassment in a meaningful way is one way to equalize
the unequal power dynamic that harmed them in the first place. This in-
cludes allowing victims/survivors to remain meaningfully engaged and in-
volved in decisions about a process that influences and affects them, in-
cluding the power to decide the extent to which they wish to remain in-
volved (if at all) in any disciplinary investigation. 104 Although the meaning
of such a survivor or victim-centred approach to sexual harassment is not
specifically spelled out in the Model Policy, and thus requires further defi-
nition in the UN’s practices, the recognition that a process must be survivor
101
Ibid.
102
Ibid., p. 14
103
“Towards an End to Sexual Harassment: The Urgency and Nature of Change in the Era of
#MeToo”, in UN Women, November 2018, p. 10: “Sexual harassment expresses and rein-
forces inequalities of power” (‘UN Women Report’). See also, Catharine A. MacKinnon,
Sexual Harassment of Working Women, Yale University Press, New Haven, 1979.
104
Lyndsey Jones-Renaud, “What does a Survivor-Centered Approach to Workplace Harass-
ment Look Like?”, in Medium, 29 November 2018.

or victim-centred is a first step towards equalizing inherently unequal pow-

er dynamics.
The Model Policy has, however, also been criticised for continuing to
emphasise offensiveness and humiliation in its definition of sexual harass-
ment, which some argue trivializes the issue, displays moral judgment, and
engages in “demeaning psychologizing”. 105 Furthermore, it is expected that
all UN entities use this Model Policy on Sexual Harassment to further
strengthen and reform their own policy documents to align with their re-
spective institutional and legal frameworks. As it continues to allow for the
adoption of diverse policy frameworks by different UN entities, it leaves
the door open to diverse interpretations of its provisions. As the policy, and
thus the definitions set out therein, were the result of negotiations and
compromise between a large number of UN entities, the result is ultimately
imperfect. 106 Nonetheless, the commitment to adopt a uniform definition of
sexual harassment, and the setting of minimum standards and core policy
principles, is an important (first) step towards a more harmonised approach
to sexual harassment. It opens possibilities for very necessary discussions
and reflections on the scope of sexual harassment policy frameworks at the
UN and beyond. This is important not least because other organisations in
the human rights, humanitarian, and development fields tend to use UN
definitions in the development of their own internal policies. 107 As data
gathering on the range of misconduct that occurs within a workplace con-
tinues, at the UN and elsewhere, it would be important to ensure that the
policy framework captures the full scale of behaviours that may constitute
sexual violence within the workplace.
105
UN Women Report, November 2018, p. 8, see above note 103: “Define sexual harassment
as what it is: a human rights violation of gender-based discrimination, regardless of sex, in a
context of unequal power relations such as a workplace and/or gender hierarchy. It can take
the form of various acts including rape, other aggressive touching, forced viewing of por-
nography, taking and circulation of sexual photographs, as well as verbal sexual conduct.
Definitions should define, not trivialize (for example, refer to ‘annoyance’), make moral
judgments (‘offensiveness’), or engage in demeaning psychologizing (‘humiliation’)”.
106
On the wins and losses of the new policy, see also: Priyanka Chirimar, “UN’s New Harass-
ment Policy: You win some, you lose some”, Action against Prohibited Conduct (AAPC), 25
September 2020 (available on its web site).
107
For instance, Oxfam has adopted UN definitions of sexual harassment, sexual exploitation,
and sexual abuse. See Oxfam, “One Oxfam Policy on Protection from Sexual Exploitation
and Abuse”, December 2018 (available on its web site). See also, the definitions adopted in
the CHS Alliance’s PSEAH Quick Reference Handbook, revised version 2020 (available on
its web site).

Work on other areas, such as better data collection to inform evi-

dence-based policy making and strengthening investigative capacity, both
of which are important to strengthen organizational responses to sexual
harassment, 108 remains ongoing. For instance, in February 2018, the Secre-
tary-General announced that the Office of Internal Oversight Services
would assume responsibility for investigating all complaints of sexual har-
assment. 109 A specialised team of investigators, for which the UN priori-
tised the recruitment of female investigators, would implement a fast-
tracked procedure to review, process and investigate complaints of sexual
harassment. 110 Before this decision was made, sexual harassment allega-
tions, if they were addressed through a formal process at all, were either
addressed through informal mediation procedures, or through the estab-
lishment of an inquiry conducted by a panel of peers. 111 The move towards
ensuring sexual harassment allegations are investigated by professional in-
vestigators with specific expertise in investigating these types of allega-
tions is a welcome step. However, it would be important to equally invest
in building the capacity of senior decision-makers (such as Heads of De-
partment, Under-Secretary-Generals and/or members of the Office of Hu-
man Resources Management) in better understanding the context, conse-
quences and structures that enable sexual harassment. They are generally
tasked with interpreting investigation reports and translating these into the
appropriate disciplinary action, as well as with taking measures to promote
a workplace culture that prevents and does not tolerate sexual harassment
and other similar integrity violations.
Earlier in 2017, the UN also strengthened its protection against retal-
iation policy. Protection against retaliation policy – also sometimes referred
to as a ‘whistle-blower policy’– is an important organizational measure to
encourage staff to speak up about misconduct they witness or become
aware of. The UN’s protection against retaliation policy now applies not
just to staff members, interns and UN volunteers, but also to individual
108
See also, the recently adopted Convention and Recommendation by the International Labour
Organization on violence and harassment in the workplace (available on its web site).
109
It should be noted, however, that in its updated policy, while OIOS retains primary responsi-
bility for investigating cases of sexual harassment, OIOS may also refer cases (back) to re-
sponsible officials for action, which may include investigative actions by an investigative
panel of staff. ST/SGB/2019/8, section 5, see above note 87.
110
“UN launches 24-hour hotline for staff to report sexual harassment”, UN News, 26 February
2018.
111
See above note 88.

contractors and consultants. 112 The policy defines retaliation as “any direct
or indirect detrimental action that adversely affects the employment or
working conditions of an individual, where such action has been recom-
mended, threatened or taken for the purpose of punishing, intimidating or
injuring an individual because that individual engaged in” a protected ac-
tivity. 113 Such a ‘protected activity’, however, is narrowly defined to cover
reporting misconduct through established reporting channels 114 and/or co-
operating with a duly authorised audit or investigation. While protection
against retaliation for reporting misconduct is an important part of a func-
tioning ethics infrastructure to encourage staff members and others to speak
up about concerns of misconduct, through the adoption of such a formal
definition, it fails to address more informal ways in which retaliation mani-
fests, in particular in cases of sexual harassment. For example, women
have reported that they were denied promotions, have been excluded from
meetings or duty travel, and were denied training opportunities, projects,
assignments or other work to advance their career merely for rebuffing
sexual advances from senior officials. 115 Such retaliatory behaviour often
already occurs before a complainant submits a report of misconduct
through the appropriate reporting channel (if they do at all), and as such,
would likely fall outside the formal scope of the UN’s protection against
retaliation policy. In other words, these other forms of retaliatory behaviour,
112
“Protection against retaliation for reporting misconduct and for cooperating with duly au-
thorized audits or investigations”, Secretary-General’s Bulletin ST/SGB/2017/2/Rev.1, 28
November 2017 (‘ST/SGB/2017/2/Rev.1’) (https://www.legal-tools.org/doc/opkf43/). Sec-
tion 2.1. now provides that protection against retaliation applies to any staff member (re-
gardless of the type of appointment or its duration), intern, United Nations volunteer, indi-
vidual contractor or consultant who engages in a protected activity. A protected activity is
defined as reporting misconduct through established reporting channels and/or cooperating
with a duly authorised audit or investigation. Previously, the policy only covered UN staff
members, interns and UN volunteers. Note, the UNDP protection against retaliation policy
already covered non-staff personnel such as contractors, interns and UNVs serving in UNDP
or another UNDP administered fund, programme or agency since July 2012. The revised
policy also introduced protection of individuals who choose to report wrongdoing to an ex-
ternal entity in limited circumstances, allows for recommending transfer of the alleged retal-
iator, and explicitly prohibits retaliation against outside parties.
113
Ibid., Section 1.4.
114
The established reporting channels are set out in: “Unsatisfactory conduct, investigations
and the disciplinary process”, Administrative Instruction ST/AI/2017/1, 26 October 2017
(https://www.legal-tools.org/doc/vzfumy/).
115
PassBlue, January 2019, see above note 94.

much more common than retaliation as defined in the policy, still remain
subject only to other, more informal resolution mechanisms.
The various measures taken by the UN since 2018 are important first
steps towards addressing sexual harassment. But they are simply that: first
steps. Their true test will lie in their implementation and, in particular, in
their impact upon changing structural dimensions of inequality that have
manifested in an organizational culture that has long silenced and ignored
sexual harassment (in the UN and beyond, as illustrated by the #MeToo
movement). The UN and NGO surveys on (sexual) harassment that have
followed each other in relatively quick succession in the first six months of
2019, confirm the importance of workplace culture, and in particular une-
qual power dimensions and structures of privilege that protect those in po-
sitions of power, as a predictor for incidents of (sexual) harassment and
other forms of gender-based violence in the workplace. 116 What these re-
ports ultimately illustrate is that having regulatory and institutional ethics
infrastructure is simply not enough when the values underpinning that eth-
ics framework are not lived as a reality by staff and reflected in the man-
agement practices of institutions.
Ultimately, to address systemic integrity breaches such as sexual
harassment, whether in the UN or elsewhere, requires addressing the per-
vasive male-dominated power structures that exist, and challenging the dis-
tributions of power within the workforce and therefore the nature of the
workforce. Research has shown that sexual harassment is much more likely
to occur in workplace contexts “where men outnumber women, where
leadership is male-dominated, […] where the power structure is hierar-
chical, where lower-level employees are largely dependent on superiors for
advancement, and where power is highly concentrated in a single per-
son”. 117 Another key determining factor is organizational climate, and, in
particular, “organizational tolerance”. 118 In other words, organizations with
116
UNAIDS Report, December 2018, see above note 91; Safe Space Survey Report, January
2019, see above note 75; Amnesty International Report, January 2019, see above note 77;
IBA Report, May 2019, see above note 78; Oxfam interim and final report of Independent
Commission, June 2019, see above note 76.
117
Nancy Gertner, “Sexual Harassment and the Bench”, in Stanford Law Review Online, 2018,
vol. 71, p. 91.
118
UN Women Report, November 2018, p. 16, see above note 103; Chloe Hart, Alison Dahl
Crossley and Shelley Correll, “Study: When Leaders Take Sexual Harassment Seriously, So
Do Employees”, in Harvard Business Review, 14 December 2018 (available on its web site);
Paula A. Johnson, 2018, see above note 72.

diversified leadership, including but not limited to gender diversity, are

likely to have fewer sexual harassment instances and a different, more in-
clusive organizational culture. 119 The Secretary-General’s gender parity
strategy 120 is an important first step in that direction. But equally, it re-
quires consistent and unequivocal messaging from leadership, and swift,
decisive action when confronted with integrity breaches such as sexual
harassment. Real accountability must exist and be seen to exist at all levels
in the hierarchy, with no exceptions. While a lot of attention has been paid
since the establishment of the UN to how to ensure the independence and
impartiality of international civil servants vis-à-vis the ‘outside world’, to
truly understand the meaning of and to improve the integrity of internation-
al justice institutions and of individual justice actors, requires critically ex-
amining our own institutions and reflect internally on what integrity means
within our workforces. That requires asking the awkward questions, expos-
ing and changing structures of (predominantly male) power, and redefining
ethical leadership based on feminist principles. 121
13.5. Conclusion: Redistributing Power and Culture Change
Unfortunately, today’s world continues to be inherently unequal, where
people are continuously discriminated against based on their sex, gender,
ethnicity, age, religion or sexual orientation (or any other protected ground),
where power is abused on a daily basis, and where injustices are present
every day. It is easy to forget that the staff members who make up the UN
are not super-humans who live and breathe only the higher ideals of the
international civil service; rather, they bring with them their personal val-
ues, experiences, backgrounds and cultures that are based in that inherently
unequal world (with some being more unequal than others). Personal val-
ues play an important part in navigating an individual’s personal and pro-
fessional lives, and there may be times when those personal values come
into conflict with organizational values. Indeed, diversity in an institution
like the UN or the ICC is what gives these institutions their strength, but at
the same time can also become their biggest weakness. In such contexts,
119
See, for example, Nancy Gertner, 2018, p. 91, see above note 117; IBA Report, May 2019,
p. 14, see above note 78.
120
UN System-Wide Strategy on Gender Parity, October 2017 (available on UN web site).
121
See, for an example of Feminist Leadership Principles, Shawna Wakefield, “Transformative
and Feminist Leadership for Women’s Rights”, Oxfam America Research Backgrounder Se-
ries, 23 January 2017 (available on its web site).

there is always a risk that organizational culture and practices reflect those
same injustices and inequalities these organisations were designed to
fight. 122 For this reason, many organisations, like the UN, have adopted
Codes of Conduct and other regulatory ethics infrastructure to provide their
staff members with a framework or moral compass to guide decisions they
are making on a daily basis. Such ethics and integrity frameworks thus of-
ten focus on delineating both desirable and undesirable behaviour in line
with an organization’s core values.
However, as Parker et al. (2008) have demonstrated,
ethical infrastructures will only be useful if everyone […] is
explicitly encouraged to raise ethical issues so that ethical
problems can be identified, discussed and resolved – and peo-
ple are not punished for raising them in the first place. 123
In other words, successful ethics infrastructures require not only the
existence of rules and regulations, and mechanisms to enforce compliance
and mete out sanctions for transgressions, but a deeper engagement with
ethics and integrity by an institution and its staff on a day-to-day basis,
both externally and internally. Integrity and its associated ethics infrastruc-
ture must become part and parcel of an organization’s informal workplace
practices, cultures and expectations. Otherwise, “there is a danger that ethi-
cal infrastructure will simply amount to formal ethical structures that do
not connect with informal work team cultures and individual [staff mem-
bers’] values in practice”. 124 A workplace culture that privileges and is per-
122
In 2010, David La Piana described what he called the ‘Non-Profit Paradox’: “Nonprofits
tend to recreate within their own organizational cultures the problems they are trying to
solve in society”. He explains that organizations that are highly value-driven, such as non-
profits, employ individuals who are also highly value and mission-driven. Yet this mission-
drive and their commitment to progressive social values, he explains, “can drive dysfunc-
tional organizational behaviour by blinding workers to their own faults”. Additionally, he al-
so observed that “values-driven people sometimes feel that their ethical activities entitle
them to act less morally”. The irony, then, is that such value-driven individuals who often
observe or interact with human rights abusers may (unintentionally) start exhibiting those
same abusive behaviours in their interaction with others, most notably with their peers and
colleagues. At the same time, value-driven individuals in less powerful positions tend to be-
come particularly sensitive to possible abuses of power, and thus to feel oppressed by those
in positions of power. See David La Piana, “The Nonprofit Paradox: Why organizations are
so often plagued by the very ills they aim to cure”, in Stanford Social Innovation Review,
2010.
123
Parker et al., 2008, p. 183, see above note 5.
124
Ibid., p. 161.

ceived to protect individuals who engage in misconduct is much more

damaging than the absence of an ethics infrastructure altogether. The added
value of addressing these deeper structures may not be seen in the immedi-
ate short term, but institutions that put in place ethics mechanisms coupled
with cultural change practices will reap long term benefits.

14
______
Sexual Harassment
Matthias Neuner *
This chapter discusses the United Nations’ (‘UN’) decades-long and ongo-
ing effort to preserve and defend the integrity of its staff by defining sexual
harassment 1 and investigating as well as judicially pursuing those who are
alleged to have engaged in such illegal behaviour. Personal conduct in this
area is at the very centre of the notion of ‘integrity’ of those who serve in-
ternational organisations. It is a topic that has only become more important
in recent years, especially after the global #metoo movement.
Twenty-six years after the enactment of the first administrative defi-
nition of sexual harassment, the Chief Executive Board for Coordination
(‘CEB’) of the UN observed in 2018 that “sexual harassment results from a
culture of discrimination and privilege, based on unequal gender relations
and power dynamics. It creates hostile workplaces, which limit the tar-
get/victim/affected individual’s ability to thrive”. 2
*
Matthias Neuner is Trial Counsel, Office of the Prosecutor, Special Tribunal for Lebanon.
The views expressed in this chapter are those of the author and do not necessarily reflect the
views of the Tribunal.
1
This chapter exclusively focuses on sexual harassment and covers neither sexual exploita-
tion nor sexual abuse. Sexual exploitation means “any actual or attempted abuse of a posi-
tion of vulnerability, differential power, or trust, for sexual purposes, including, but not lim-
ited to, profiting monetarily, socially or politically from the sexual exploitation of another”,
similarly, the term ‘sexual abuse’ means the “actual or threatened physical intrusion of a
sexual nature, whether by force or under unequal or coercive conditions”. Secretary-
General’s Bulletin, Special measures for protection from sexual exploitation and sexual
abuse, UN Doc. ST/SGB/2003/13, 9 October 2003, section 1 (https://www.legal-tools.org/
doc/ftozsr/). For the UN Organization Mission in the Democratic Republic of Congo, a
‘Code of Conduct on Sexual exploitation and sexual abuse’ has been published, which refers
to ST/SGB/2003/13 and ST/SGB/1999/13. Section 7.2 of the latter instrument prohibits that
UN forces commit against civilians and persons hors de combat “rape, enforced prostitution,
any form of sexual assault and humiliation and degrading treatment”. Secretary-General’s
Bulletin, Observance by United Nations forces of international humanitarian law, UN Doc.
ST/SGB/1999/13, 6 August 1999 (https://www.legal-tools.org/doc/kbgmi6/). This chapter
does not discuss any of the criminal offences mentioned in section 7.2 of ST/SGB/1999/13.
2
UN Chief Executives Board, System Model Policy on Sexual Harassment, London, 3-4 May
2018 (‘UN model policy on sexual harassment’), section II (policy statement), para. 1.

The definition of sexual harassment has evolved over time. Various

UN agencies adopted distinct definitions containing slight variations. How-
ever, in 1992 and 2008, the UN Secretariat issued two bulletins which
bound the UN common system, including most of its sub-agencies. The
2008 instrument defines sexual harassment as
any unwelcome sexual advance, request for sexual favour,
verbal or physical conduct or gesture of a sexual nature, or
any other behaviour of a sexual nature that might reasonably
be expected or be perceived to cause offence or humiliation to
another, when such conduct interferes with work, is made a
condition of employment or creates an intimidating, hostile or
offensive work environment. 3
14.1. Impact on Target’s Health and Thus on Work Environment

At the heart of defining and banning sexual harassment stands the convic-
tion that such behaviour conflicts with the principle of equal treatment and
interferes with productivity because it affects the target’s health by under-
mining morale, causing anxiety, stress and, if no timely intervention occurs,
can lead to the affected individual’s absence from work, higher labour
turnover combined with long term damage of career prospects as the af-
fected person chooses to avoid the damaging situation by changing jobs. 4
The case of Cateaux v. Secretary-General (‘S-G’) is exemplary of
how sexual harassment can affect its target. Cateaux, a UN staff member,
had entertained a relationship with a married man. After this relationship
had ended the man sent from his wife’s email-account a message contain-
ing various swear words and attached two nude pictures of Cateaux. Recip-
ients were various persons including Cateaux, family members of Cateaux
and other UN staff. The former described the effect the sending of this
email had:
I was shocked. I really lost my mind. This was overwhelming.
I was completely demoralised. The only solution was to com-
mit suicide. I did not see people. Everyone called to ask me
what kind of problem you could have with someone like this.
3
UN Secretary-General’s (‘S-G’) bulletin, Prohibition of discrimination, harassment, includ-
ing sexual harassment, and abuse of authority, 11 February 2008, ST/SGB/2008/5, Article
1.3 (‘2008-UN-AI’) (https://www.legal-tools.org/doc/ibc9oq/).
4
Michael Rubenstein, Dignity of women at work – A Report on the Problem of Sexual Har-
assment in the Member States of the European Communities, Office for Official Publications
of the European Communities, 1988, paras. 1.5, 1.7, 12.1 (‘Rubenstein report’).

14. Sexual Harassment
I was not myself. I did not know what to do. […] I felt very
embarrassed. […] It was difficult to go to work every day […]
[E]veryone was looking at me. I stayed indoors the whole
time. I did not speak to anyone. 5
14.2. History
Sexual harassment was first discussed and defined domestically, namely in
the United States of America (‘US’) in the late seventies and early eighties.
With regards to international organisations, sexual harassment was men-
tioned in a UN document in 1979, discussed by the European Communities
(‘EC’) in the eighties and, in the early nineties, first defined by the EC and,
shortly thereafter, by the United Nations. In this section, these develop-
ments will be traced chronologically.
14.2.1. International and Domestic Efforts to Define Sexual
Harassment
Article 8 of the UN Charter (‘Charter’) directs the UN to “place no re-
strictions on the eligibility of men and women to participate in any capacity
and under conditions of equality in its […] organs”. In addition, Article
101(3) of the Charter refers to the “highest standards of efficiency, compe-
tence, and integrity” of UN staff. 6 Integrity was initially not understood to
encompass sexual harassment, as this concept was developed only later, in
the seventies. In 1954, when the International Civil Advisory Board pre-
pared standards, which gave meaning to equality in Article 8 and “integri-
ty” in Article 101 of the Charter, these mentioned that UN staff should cul-
tivate “social relations with colleagues of different races, religions and cul-
tural backgrounds” and the “conduct of superiors must be free of intimida-
tion”. 7 However, harassment and in particular sexual harassment were
omitted.
In the seventies, discussions in the US resulted in the adoption of
domestic administrative regulations and judicial recognition that sexual
harassment is unlawful sex discrimination. 8
5
United Nations Dispute Tribunal (‘UNDT’), Cateaux v. S-G, UNDT/NBI/2010/066, Judg-
ment, 21 February 2013, UNDT/2013/027, paras. 40, 41 (https://www.legal-tools.org/doc/
exsyrw/).
6
Charter of the United Nations, 26 June 1945 (https://www.legal-tools.org/doc/6b3cd5/).
7
International Civil Advisory Board, Report on Standards of Conduct in the International
Civil Service, 1954, paras. 11, 13 (https://www.legal-tools.org/doc/d94c61/).
8
Rubenstein report, 1988, p. 1, paras. 1.1, 1.2, see above note 4.

Independent thereof the Administrative Tribunal of the UN (‘UN-

AdminT’) decided its first court case regarding allegations of harassment in
1974. 9
14.2.1.1. UN Information Circular on ‘International Women’s Day’
1979
On 8 March 1979, on international women’s day, the UN Secretariat pub-
lished an information circular:
Sexual harassment of either sex is unacceptable. Sexist re-
marks, jokes and innuendos are inappropriate in any circum-
stance. 10
This was a step forward as the UN had used the term ‘sexual harass-
ment’ for the first time in an official document that went public. However,
the first sentence, while using the phrase sexual harassment, did not define
it. The second sentence appeared to restrict sexual harassment to mere ver-
bal conduct, namely remarks, jokes and innuendos. However, physical
conduct such as touching would be equally unacceptable or inappropriate
but was not encompassed.
Further, the examples provided in the second sentence coupled with
the phrase “inappropriate in any circumstance” rendered the UN’s message
as too broad. Generally, sexist remarks, jokes and innuendos are indeed
inappropriate, but not “in any circumstance”. This phrase misses the crucial
legal element of the definition of sexual harassment, namely that conduct
must be “unwelcome” (or unwanted) to constitute sexual harassment. For
example, sexual innuendo between partners, both of which work at the UN,
might be deemed as “welcome”. The statement advanced by the UN on
international women’s day omitted the legal requirement of “unwelcome”
conduct completely by qualifying all sexist remarks, jokes and innuendos,
regardless of these being welcome or not, as “inappropriate in any circum-
stance”. Paul rightly observed that the “gravamen” of sexual harassment
claim is that the sexual advances are “unwelcome”. 11
9
Administrative Tribunal of the United Nations (‘UN-AdminT’), Ho v. S-G, Judgment no.
189, 7 October 1974 (https://www.legal-tools.org/doc/3m78i2/).
10
UN Secretariat, Information circular from the Under-S-G for Administration and Manage-
ment, Guidelines for promoting equal treatment of men and women in the Secretariat, 8
March 1979, ST/IC/79/17, para. 9.
11
Ellen Frankel Paul, “Sexual Harassment as Sex Discrimination: A Defective Paradigm”, in
Yale Law and Policy Review, 1990, p. 344.

Further, due to the aforementioned shortcomings, this first UN

statement failed to provide a precise legal and actionable definition. It also
omitted any reference to disciplinary proceedings and sanctions. The status
of the document was a mere ‘information circular’ instead of an administra-
tive instruction that would at least make reference to ‘disciplinary
measures’ and announce an investigation or sanction in case such behav-
iour occurs. Rather, paragraph 15 of the UN’s information circular issued
on international women’s day clarified that the document would constitute
mere “guidelines”. The document issued with the best intentions on inter-
national women’s day in 1979 was less legal but rather political in nature.
14.2.1.2. Domestic Legislation Defines Sexual Harassment First
Half a year after the UN had issued its information circular on international
women’s day, Catharine MacKinnon published the book Sexual harassment
of Working Women. 12 She defined sexual harassment as “the unwanted im-
position of sexual requirements in the context of a relationship of unequal
power”. 13 Unlike the UN in its information circular months before,
MacKinnon emphasized that conduct has to carry the element of ‘unwant-
ed’ to constitute sexual harassment. MacKinnon described two types of
sexual harassment: the first consisting of an exchange of sexual compliance
in exchange for an employment opportunity (quid pro quo) and the second
when sexual harassment is a persistent condition of work. 14
14.2.1.2.1. Equal Employment Opportunity Commission
Months later, in the US the Equal Employment Opportunity Commission
(‘EEOC’) observed regarding the US that “sexual harassment continues to
be especially widespread”. 15 In April 1980, the EEOC suggested adding a
provision defining sexual harassment as physical or verbal in nature. Sexu-
al harassment was seen as conduct to which the target submits as a term or
condition or basis of employment, 16 and was defined as
12
Catharine A. MacKinnon, Sexual Harassment of Working Women – A Case of Sex Discrimi-
nation, Yale University Press, 1979.
13
Ibid., p. 1.
14
Ibid., pp. 32–42.
15
Equal Employment Opportunity Commission (‘EEOC’), Interim Guidelines on Sexual Har-
assment, 11 April 1980, p. 25024 (‘EEOC interim guidelines 1980’).
16
Ibid.

[u]nwelcome sexual advances, requests for sexual favors, and

other verbal or physical conduct of a sexual nature when (1)
submission of such conduct is made either explicitly or im-
plicitly a term or condition of an individual’s employment, (2)
submission to or rejection of such conduct by an individual is
used as a basis for employment decisions affecting such indi-
vidual, or (3) such conduct has the purpose or effect of sub-
stantially interfering with an individual’s work performance or
creating an intimidating, hostile, or offensive working envi-
ronment. 17
Firstly, unlike the UN’s 1979 information circular, the US definition
also included physical conduct. Secondly this domestic definition intro-
duced the concept of “unwelcome” conduct. Excluding welcome advances,
the definition only prohibited conduct which was ‘unwelcome’. The EEOC
did not specifically adopt the ‘unwanted’ element MacKinnon had pro-
posed, but the ‘unwelcome’ element was at least similar. Thirdly, the defi-
nition contained three variants, with the first two including conduct of a
sexual nature in relation to hiring of staff for future or existing employ-
ments, 18 and the third relating to conduct relating to existing employment.
Following a public consultation process, the EEOC refined this defi-
nition some seven months later:
Unwelcome sexual advances, requests for sexual favors, and
other verbal or physical conduct of a sexual nature constitute
sexual harassment when (1) submission to such conduct is
made either explicitly or implicitly a term or condition of an
individual's employment, (2) submission to or rejection of
such conduct by an individual is used as the basis for em-
ployment decisions affecting such individual, or (3) such con-
duct has the purpose or effect of unreasonably interfering with
an individual's work performance or creating an intimidating,
hostile, or offensive working environment. 19
17
Ibid, p. 25025, § 1604.11.
18
Often referred to as quid pro quo (compare UN-AdminT, Applicant v. S-G, Judgment, 30
January 2009, No. 1423, pp. 3, 6 (section II), 10 (section XVIII) (https://www.legal-
tools.org/doc/uhsmw3/)); Paul, 1990, p. 333, see above note 11.
19
Equal Employment Opportunity Commission (‘EEOC’), Guidelines on Discrimination Be-
cause of Sex, 10 November 1980, § 1604.11.

Regarding the third variant, this amended definition dropped the re-
quirement for ‘substantial’ interference with an individual’s work perfor-
mance, substituting it with ‘unreasonable’ interference.
14.2.1.2.2. US Supreme Court
In 1986, the Supreme Court of the US decided the case Meritor Savings
Bank v. Vinson. The judges accepted the definition advanced by the
EEOC 20 and further held that a ‘hostile environment’ sexual harassment is
a form of sex discrimination. 21 The judges found that sexual harassment
occurs when it is “sufficiently severe or pervasive ‘to alter the conditions of
[the affected individual’s] employment and create an abusive working envi-
ronment […]’”. 22
14.2.1.2.3. The EC’s Efforts to Define Sexual Harassment until 1991
In the mid-eighties, the European Parliament and the Council of Ministers,
in a series of resolutions, recognised sexual harassment as a problem affect-
ing the dignity and rights of women at work. 23 Still, by 1988 the Ru-
benstein report observed that no Member States of the EC “has any express
legal prohibition of sexual harassment”. 24 European legislation had been
dormant. Rubenstein’s report sent a wakeup call to the EC in Brussels and
to other capitals of European States, resulting in a delayed effort to catch
up with the legislative developments in the US on defining and prohibiting
sexual harassment at work.
On 20 June 1988, the EC’s Advisory Committee on Equal Opportu-
nities for Women and Men suggested adopting a recommendation and a
20
US Supreme Court, Meritor Savings Bank v. Vinson, Judgment, 19 June 1986, No. 84-
1979, p. 57 (65).
21
Ibid., p. 57, section 1, pp. 66, 67.
22
Ibid., p. 67, quoting US Court of Appeals, 11th Circuit, Henson v. City of Dundee¸ Judgment,
9 August 1982, No. 80-5827, 682 F.2d 897 (1982).
23
Rubenstein report, para. 1.2, see above note 4, referring, among others, to a “series of reso-
lutions” of the European Parliament and the European Council resolution of 13 December
1984 on the promotion of positive action for women (Council Recommendation of 13 De-
cember 1984 on the promotion of positive action for women, 84/635/EEC, in Official Jour-
nal of the European Communities, 19 December 1984, no. L 331/34, op. para. 4, second
point; also compare European Parliament, Recommendation to member states on 25 October
1984, in Official Journal of the European Communities, 26 November 1984, no C 315/77.
24
Rubenstein report, paras. 1.6, 12.3, and chapter IV, see above note 4.

code of conduct on sexual harassment in the workplace. 25 Following up on

the Rubenstein report, the Commission of the EC adopted on 27 November
1991 a Code of Practice on measures to combat sexual harassment which
defined:
Sexual harassment means unwanted conduct of a sexual na-
ture or other conduct based on sex affecting the dignity of
women and men at work. This can include unwelcome physi-
cal, verbal or non-verbal conduct. 26
This definition was inclusive in that verbal, non-verbal or physical
conduct sufficed. The definition further distinguished, similar to MacKin-
non in her book, between wanted and ‘unwanted’ conduct. ‘Unwanted’ was
an intentional element comparable to the ‘unwelcome’ element in the defi-
nition advanced in the US. The Commission of the EC excluded conduct
from constituting sexual harassment when wanted by the target. Only un-
wanted conduct was prohibited, similar to the American approach which
targeted conduct ‘unwelcome’ by the affected individual.
14.2.1.2.4. The UN’s First Legal Definition in 1992
Less than a year later, the UN Secretariat adopted its first administrative
instruction prohibiting sexual harassment. Referring to Articles 8 and 101(3)
of the Charter, the S-G stated that
[a]ny form of harassment, particularly sexual harassment, at
the workplace in connection with work is contrary to the pro-
visions of the Charter and, consequently, to the policy of the
organisation; it is a violation of the standards of conduct ex-
pected of every international civil servant and may lead to dis-
ciplinary action. 27
On the same day, an administrative instruction was issued which defined
sexual harassment as:
25
European Communities, Commission Recommendation of 27 November 1991 on the pro-
tection of the dignity of women and men at work, 27 November 1991, 92/131/EEC, in Offi-
cial Journal of the European Communities, 4 February 1992, no. L 49/1 (‘EC Commission
Recommendation 1991’).
26
Ibid., annex, “Protecting the dignity of women and men at work: code of practice on
measures to combat sexual harassment”, section 2, para. 1.
27
UN, Promotion of equal treatment of men and women in the secretariat and prevention of
sexual harassment, 29 October 1992, ST/SGB/253, para. 1 (‘ST/SGB/253’) (https://
www.legal-tools.org/doc/l1e3wb/).

[A]ny unwelcome sexual advance, request for sexual favours

or other verbal or physical conduct of a sexual nature, when it
interferes with work, is made a condition of employment or
creates an intimidating, hostile or offensive work environ-
ment. 28
Unlike the 1979 information circular issued on international wom-
en’s day, the UN introduced, for the first time in 1992, the legal require-
ment that conduct must be ‘unwelcome’. A comparison of the definitions
advanced by the Commission of the EC and the UN reveals large overlaps.
Both definitions demand (1) an unwelcome, 29 (2) conduct of a sexual na-
ture, (3) in verbal or physical form which (4) occurs in relation to, or inter-
feres with work, including by creating a negative work environment.
Regarding the third element, the EC definition is clearer and possibly
wider, as it clarifies that also “non-verbal” conduct suffices. In relation to
the fourth element, the UN definition is wider: while the EC definition re-
quires that the violation affects the dignity of the target at work, does the
UN definition not require dignity to be affected, and also prohibits conduct
which “is made a condition of employment”. 30 This would prohibit a quid
pro quo request for sexual favour expressed by a hiring agent at a point in
time when no working relationship exists between the applicant and the
UN. By contrast, the EC definition appears narrower as the conduct must
affect the target ‘at work’.
Unlike in 1979, when the UN Secretariat had first used the concept
of sexual harassment in a political context without defining and accompa-
nying it by sanctions, now, in October 1992, it provided a legal definition.
Further, a written complaint on sexual harassment the “Office of Human
Resources Management will promptly conduct […] the initial investigation
and fact-finding” which “may lead to disciplinary action”. 31 This step
meant that the UN administration had adopted a legal definition of sexual
harassment which qualified the prohibited conduct as a breach of discipline
that incurred sanctions. This step opened the doors for affected individuals
28
UN, Administrative Instruction: Procedures for dealing with sexual harassment, 29 October
1992, ST/AI/379, para. 2 (‘1992-UN-AI’) (https://www.legal-tools.org/doc/juboyq/).
29
The EC definition interchangeably uses ‘unwelcome’ and ‘unwanted’.
30
Compare the first variant of the definition of US law on the prohibition of sexual harassment
(EEOC interim guidelines 1980, page 25025, § 1604.11 under (1)).
31
1992-UN-AI, para. 9, see above note 28; ST/SGB/253, para. 1, ST/SGB/253, see above note
27.

to report these allegations, for the administration to initiate fact-finding and

investigation processes in order to sanction offenders and, in case of legal
disputes, for the UN Administrative Tribunals to adjudicate them.
14.2.2. Standard-Setting Phase
After the UN Secretariat had defined sexual harassment and prohibited
such conduct, the various organs and sub-agencies within and associated to
the UN adopted administrative instructions defining the prohibited conduct
as well as the procedures to be followed if the victim reported such conduct.
Table 1 lists some of the main instruments containing definitions of sexual
harassment in chronological order.
Date Entity Instrument

29 Oct. 1992 Under-Secretary-General for Nr. 2, ST/AI/379
Administration and Manage-
ment
18 May 1993 United Nations Development UNDP/ADM/93/26, policy on sexual
Programme (‘UNDP’) harassment
16 Jan. 1995 UNDP Circular UNDP/ADM/95/6, policy on
sexual harassment
30 Jun. 1995 Word Food Program (‘WFP’) Section 6, WFP Circular N. 95/004:
Policy on the Prevention of Sexual
Harassment and the Resolution of
Problem Cases
19 Feb. 1999 WFP Section 6, WFP Policy on the Preven-
tion of Harassment
14 Jul. 2005 International Criminal Court Administrative Instruction
ICC/AI/2005/005, section 2.2
16 Dec. 2005 UNICEF Para. 8, CF/AI/2005-017 (UNICEF)
11 Feb. 2008 UN S-G Article 1.3 ST/SGB/2008/5; S-G bulle-
tin
2010 UN Relief and Works Agency Paragraph 6, UNRWA General Staff
(‘UNRWA’) Circular No. 6/2010 on Prohibition of
Discrimination, Harassment – includ-
ing Sexual Harassment – and Abuse
Power
23 May 2013 Special Tribunal for Lebanon Section 2.3, AI prohibition of discrim-
ination, harassment, including sexual
harassment and abuse of authority

Date Entity Instrument

15 Jan. 2015 Food and Agricultural Organ- 12 f), FAO Policy on the Prevention of
isation Harassment, Sexual Harassment and
Abuse of Authority
3 May 2018 CEB Section I, UN model policy on sexual
harassment
Table 1: Main instruments containing definitions of sexual harassment.
With sexual harassment being defined, the first cases were reported
and formal procedures were initiated to determine whether allegations of
sexual harassment could be substantiated. Some disciplinary proceedings
involving sexual harassment resulted in the imposition of sanctions on cer-
tain offenders. Some of these cases were then litigated in front of the UN
administrative tribunals. In the following, a cursory overview of some of
the 43 judgements issued by the UNAdminT, the UN Dispute Tribunal
(‘UNDT’) and the UN Appeals Tribunal (‘UNAT’) is provided. The follow-
ing graphs distilling key facts of the 43 cases provide some important in-
formation and context.
The gender breakdown of the alleged offenders was:
Unclear
5%
Female
11%
aale
84%
Absolute numbers:
Male: 36
Female: 5
Unclear:2
Graph 1: Alleged offenders by gender (in percentage).
The term ‘unclear’ in the above signals that due to the gender-neutral
language used throughout the judgment it was not possible to determine the
gender of the alleged perpetrator.

The gender breakdown of the affected individuals was:

Unclear
5%
aale
14%
Female
81%
Absolute numbers:
Male: 6
Female: 35
Unclear:2
Graph 2: Alleged victims by gender (in percentage).
The alleged male offenders targeted:
Unclear
8%
aale
9%
Female
83%
*Number of male alleged offenders: 36
Graph 3: Targets of male alleged offenders* by gender (in percentage).
Already in 1988, Rubenstein observed that sexual harassment is

“frequently a function of power. Because women rarely have power over

men, sexual harassment at work is mainly a problem affecting women, alt-

hough men, as well as women, can be sexually harassed”. 32
For cases where the alleged offender is a female, the gender break-
down of the target is as follows:
Female
33%
Male
67%
*Number of femMle Mlleged offenders: 5
Graph 4: Targets of female alleged offenders* by gender (in percentage).
Also, the growing sexual liberation of society has led to more indi-
viduals identifying themselves as lesbian, gay, bisexual or queer. Thus, the
aforementioned male–female dichotomy has become a little bit simplistic
and therefore outdated. Indirectly acknowledging these developments, the
nuances in the CEB’s statement become obvious: “sexual harassment is the
manifestation of a culture of discrimination and privilege based on unequal
gender relations and other power dynamics”. 33
This statement replaces the outdated male/female dichotomy and
highlights instead discrimination and privilege, which are exercised against
a background of gender relations and other power dynamics.
For example, 11 of the cases reviewed were related to ‘power dy-
namics’ involving a person in superior capacity. 34 Furthermore, at least
32
Rubenstein report, para. 1.5, see above note 4.
33
UN model policy on sexual harassment, section II, para. 1, see above note 2.
34
UN-AdminT, Claxton v. S-G, Judgement, 30 June 1992, No. 560 (https://www.legal-
tools.org/doc/iujb1v/); UN-AdminT, van der Graaf v. S-G, Judgement, 23 July 2001, AT/
DEC/997 (‘van der Graaf v. S-G’) (https://www.legal-tools.org/doc/fyqtk7/); UN-AdminT,
Al-Fahoum v. S-G, Judgement, 20 November 2001, AT/DEC/1018 (https://www.legal-

three cases related to ‘gender relations’ involving questioning of homosex-

uality, and allegations of sexual harassment and sexual assault. 35 Two of
the latter three cases did not involve a perpetrator in a senior capacity. 36
14.3. Evolution of the Definition of Sexual Harassment
According to the 1992 UN definition sexual harassment consists of three
elements: (1) an advance with, request for, or conduct of a sexual nature
which (2) is unwelcome, and (3) negatively interferes with the work envi-
ronment or is made a condition of employment.
The following section describes the evolution of the first and second
elements of this definition through the jurisprudence of the UN Administra-
tive tribunals and the subsequent administrative instruction which was en-
acted in 2008. 37
14.3.1. First Element: Twofold Evolution
The first element of the definition of sexual harassment evolved in a two-
fold way. An objective test was added and it was clarified that non-verbal
conduct may constitute sexual harassment.
tools.org/doc/oeq66n/); UN-AdminT, Rahman v. S-G, Judgement, 23 November 2001,

AT/DEC/1032 (https://www.legal-tools.org/doc/t24vxz/); UNDT, Pandey v. S-G, Judgment,
30 June 2011, UNDT/2011/117 (https://www.legal-tools.org/doc/v9o51d/); UNAT, Perelli v.
S-G, Judgment, 28 March 2013, 2013-UNAT-291 (‘UNAT Perelli judgment’) (https://
www.legal-tools.org/doc/e5ss3z/); UNDT, Perelli v. S-G, Judgment, 9 March 2012,
UNDT/2012/034 (‘UNDT Perelli judgment’) (https://www.legal-tools.org/doc/f24e3o/);
UNDT, Khan v. S-G, Judgment, 12 November 2013, UNDT/2013/140 (‘UNDT – judgment
Khan’) (https://www.legal-tools.org/doc/chrhfp/); UNDT, Portillo Moya v. S-G, Judgment,
24 February 2014, UNDT/2014/021 (‘UNDT judgment Portillo Moya’) (https://www.legal-
tools.org/doc/sop09m/); UNDT, Michaud v. S-G, Judgment, 12 October 2016, UNDT/
2016/184 (‘UNDT judgment Michaud’) (https://www.legal-tools.org/doc/3t7p19/); UNAT,
Michaud v. S-G, Judgment, 14 July 2017, 2017-UNAT-761 (‘UNAT judgment Michaud’)
(https://www.legal-tools.org/doc/22fi7z/); UNAT, Bagot v. Commissioner-General of the
United Nations Relief and Works Agency for Palestine Refugees in the Near East, Judgment,
31 March 2017, 2017-UNAT-718 (‘UNAT Bagot judgment’) (https://www.legal-tools.org/
doc/f6ksww/); Dispute Tribunal of the United Nations Relief and Works Agency for Pales-
tine Refugees in the Near East (‘UNRWA’), Bagot v. Commissioner-General UNRWA,
Judgment, 19 May 2016 (‘UNRWA Bagot judgment’) (https://www.legal-tools.org/doc/
r2ja0m/);UN-AdminT, Applicant v. S-G, Judgment, 30 September 2009, AT/DEC/1449
(https://www.legal-tools.org/doc/sg3dk1/).
35
Van der Graaf v. S-G, see above note 34; UNDT, Applicant v. S-G, Judgment, 18 April 2012,
UNDT/2012/054 (https://www.legal-tools.org/doc/owtw59/) (‘Applicant v. S-G’).
36
Applicant v. S-G, see above note 35.
37
AI ST/SGB/2008/5.

14.3.1.1. Non-Verbal Conduct

The 1992 UN Administrative Instruction had defined the prohibited con-
duct as “any unwelcome sexual advance, request for sexual favours or oth-
er verbal or physical conduct of a sexual nature”. As pointed out earlier,
this first UN definition was slightly narrower than the EU definition as it
was unclear whether it would also include non-verbal conduct. In 2008, the
General Secretariat clarified that also non-verbal conduct is included by
adding language that “any other behaviour” suffices as long as it is “of a
sexual nature”. 38
14.3.1.2. Adding an Objective Test: Reasonably Expected
The first element of sexual harassment as defined by the 1992 UN Admin-
istrative Instruction further evolved through the issuance of other adminis-
trative instructions by other UN entities: in 1999, the WFP added a new
nuance to the definition, prohibiting conduct of a sexual nature that might
reasonably be expected to cause offence or humiliation to another or others;
or that another or others might reasonably perceive as placing a condition
of a sexual nature on employment, or on conditions of employment. 39
In 2005 the UN High Commissioner on Refugees (‘UNHCR’) also
added in its definition of sexual harassment a ‘reasonable-test’, 40 requiring
behaviour of a sexual nature that might reasonably be expected or be per-
ceived to cause offence or humiliation.
The General Secretariat of the UN issued the 2008 UN Administra-
tive Instruction, and followed the developments on the prohibition of sexu-
al harassment at the WFP and UNHCR by adding an objective test to sexu-
al harassment: only conduct which “might reasonably be expected or be
perceived to cause offence or humiliation” was prohibited. 41 This phrase is
repeated verbatim in the 2008 UN Administrative Instruction for harass-
ment. 42
38
2008-UN-AI, para. 1.3, see above note 3.
39
World Food Programme (‘WFP’), Policy on the Prevention of Harassment, 19 February
1999, HR 99/002, para. 6.
40
UNHCR, Policy on Harassment, Sexual Harassment, and Abuse of Authority, para. 2
(https://www.legal-tools.org/doc/y9vlxr/).
41
2008-UN-AI, para. 1.3, see above note 3.
42
Ibid., para. 1.2.

Dealing with harassment, the UNDT found in Belkhabaz v. S-G that

this phrase
very clearly sets out an objective test for establishing harass-
ment in stating that ‘the conduct might reasonably be expected
or be perceived to cause offence or humiliation’ (emphasis
added). The test focusses on the conduct itself and requires an
examination as to whether it would be expected or be per-
ceived to cause offence or humiliation to a reasonable per-
son. 43
14.3.1.3. Intention of the Alleged Offender

The UNDT ruled it is not necessary to establish that the alleged offender
was ill-intended and, to that extent, the motivation of the alleged offender
is not directly relevant for establishing harassment. 44
14.3.1.4. Expectations and Perceptions of the Target
The UN model policy on sexual harassment requires that “[i]n assessing
the reasonableness of expectations or perceptions, the perspective of the
person who is the target of the conduct shall be considered”. 45
In Michaud v. S-G, a dispute arose out of an email exchange contain-
ing inappropriate suggestive wording. The supervisor’s comments suggest-
ed sexual interest towards a subordinate who had days before joined an in-
vestigation in Afghanistan. The UNAT, noting the superior failed to see the
higher level of sensitivity, analysed the perspective of the affected individ-
ual who “indeed f[ou]nd the advances and comments inappropriate. But the
precise degree of offence [the target] took is inconsequential”. 46
In Cooke v. S-G, the UNDT extensively considered the views and
perceptions of the affected Michaud v. S-G individual. The alleged offender,
a person of senior status, had implicated at least three women. The first
woman had signalled her intention to progress professionally to her super-
visor. The alleged offender then pointed to a photograph depicting senior
43
UNDT, Belkhabaz v. S-G, Judgment, 5 February 2018, UNDT/2018/016/Corr.1, para. 141
(‘UNDT – judgment Belkhabaz’) (https://www.legal-tools.org/doc/jnftsy/); United Nations
Appeals Tribunal (‘UNAT’), Belkhabaz v. S-G, Judgment, 26 October 2018, 2018-UNAT-
873, para. 31 (https://www.legal-tools.org/doc/lra752/).
44
UNDT – judgment Belkhabaz, para. 141, see above note 3.
45
UN model policy on sexual harassment, section I, see above note 2.
46
UNAT judgment Michaud, para. 61, see above note 34.

women in the organisation and responded that it was not just their brains
that got them to where they were, but that they all had to do a bit of some-
thing else to get there. She had to be prepared to do something and that her
future lay in his hands. 47 The subordinate felt uneasy about these “com-
ments and that it seemed that he inferred she had to sell her body to pro-
gress”. 48
Though the UNDT finally denied the contested behaviour had
amounted to sexual harassment, it extensively considered the expectations
and perceptions of the individual affected by these words:
a. Did Female 1 ask the [alleged offender] what he meant
when he allegedly told her that she had “to be prepared to
do something and your future lies in my hands”? The evi-
dence is that she did not and merely assumed that by this
vague remark, he was referring to sexual favours and con-
sequently felt degraded.
b. Granted that her version of the facts are to be believed ra-
ther than that of the [alleged offender], was it not possible
that in saying that her future lay in his hands, the [alleged
offender] had other ideas of what he expected of her rather
than a sexual relationship? There is no evidence that the
words allegedly spoken by the [alleged offender] were ac-
companied by any suggestive actions or gestures as to lead
to the singular conclusion that he wanted sexual favours
from Female 1.
c. Was the fact of Female 1’s assumption as to what the [al-
leged offender] meant and her feelings of being upset and
degraded as a result thereof sufficient to establish that sex-
ual harassment had occurred in this alleged singular en-
counter with the [alleged offender]? My answer to this is
No.
d. Assuming yet again that the account of Female 1 is to be
preferred over the explanations of the [alleged offender],
was the remark such that it would reasonably be expected
or perceived to cause offence or humiliation? The alleged
remark is so vague and unclear that any ordinary person
may wonder at what the [alleged offender] meant but
47
UNDT, Cooke v. S-G, Judgment, 19 October 2012, UNDT/2012/154, para. 83 (https://
www.legal-tools.org/doc/94bml2/).
48
Ibid., para. 84.

would not feel degraded merely by the words spoken. It

must be borne in mind that the standard of reasonableness
to be adopted is the standard of the ordinary, reasonable
man or woman on the United Nations corridors. 49
14.3.1.5. The Ordinary, Reasonable Person Test

But what is an ordinary, reasonable person on the UN corridors, so to speak?
The UNAT explained in Applicant v. S-G that the “test is not if [the
contested] actions and behaviour can be explained but the perception of
[t]his behaviour by a reasonable person within a multicultural environ-
ment”. 50
This approach refers to a hypothetical, ordinary and reasonable per-
son on the UN corridors. This reference to a hypothetical person resembles
an approach taken by English courts since the Victorian era. In McQuire v.
Western Morning News the court referred to the “ordinary reasonable man,
the man on the Clapham omnibus”. 51
In Michaud v. S-G, the UNAT had to assess an email exchange,
which led to a dispute between both sides of the conversation. Having
briefly touched upon possible interpretations of the sender and receiver of
these emails exchanged by staff on the working level, the UNAT assumed
the perspective of the employer for whom both sides of the dispute worked:
“Regardless of how the comments were received, an employer […] might
reasonably expect that such comments should not be made at all to a re-
cently employed subordinate by a senior misconduct investigator”. 52 Here,
the UNAT interpreted the superior’s written words from the perspective of
his employer’s reasonable expectations.
14.3.1.6. Other UN Institutions Follow
Before the UN Secretariat issued the 2008 UN Administrative Instruction,
some instruments on sexual harassment of other UN agencies did not yet
contain the requirement that conduct must reasonably be expected or be
49
Ibid., para. 102.
50
UNAT, Applicant v. S-G, Judgment, 16 March 2012, 2012-UNAT-209, para. 54 (https://
www.legal-tools.org/doc/9cztvz/).
51
English Court of Appeal, McQuire v Western Morning News, Judgment, 11 May 1903,
2 K.B. 100 at 109 per Collins M.R.
52
UNAT judgment Michaud, para. 61, see above note 34 (emphasis added).

perceived to cause offence and humiliation. 53 Following the enactment of

the 2008 UN Administrative Instruction, other UN agencies followed and
enacted the objective test by making explicit reference to “reasonable” or
“reasonably”. 54
14.3.1.7. Comparison Between UN and US Jurisprudence
Overall, it can be concluded that at the UN, the assessment of whether a
conduct constitutes sexual harassment evolved towards a ‘reasonable’
standard, whether it is the perspective of a reasonable person or if it in-
volves the conduct of a superior, the reasonable expectations of the em-
ployer. Though this test is objective, the UN jurisprudence reveals that
judges also take the perspectives of the target of the conduct into considera-
tion.
This UN approach developed in a direction somewhat similar and
somewhat different than in the US, where the Supreme Court settled in
1993 a harassment case about the standard of whether the conduct in a
work environment was ‘abusive’ or not. In Harris v. Forklift Systems, the
Supreme Court held that “this standard requires an objectively hostile or
abusive environment – one that a reasonable person would find hostile or
abusive – as well as the victim's subjective perception that the environment
is abusive”. 55 The Supreme Court created a double, objective and subjec-
tive, standard. Both the target’s ‘subjective’ impressions of the experiences
53
ST/SGB/253, see above note 27; United Nations Children's Fund (‘UNICEF’), Sexual Har-
assment in the UNICEF Workplace, 11 March 1994, CF/AI/1994-005 (https://www.legal-
tools.org/doc/unou0n/); International Criminal Court, Administrative Instruction
ICC/AI/2005/005, 14 July 2005, section 2.2 (https://www.legal-tools.org/doc/hyvqzp/);
World Food Programme, Policy on Harassment, Sexual Harassment and Abuse of Authority,
14 February 2007, ED2007/003, para. 7 (‘WFP policy on sexual harassment’) (https://
www.legal-tools.org/doc/x3j9ng/).
54
Food and Agriculture Organisation, Policy on the prevention of harassment, sexual harass-
ment and abuse of authority, 15 January 2015, no. 2015/03, para. 12(f) (https://www.legal-
tools.org/doc/bflryf/); UNICEF, Prohibition of harassment, sexual harassment and abuse of
authority, 10 October 2008, CF/EXD/2008- 004, section 1.1(b) (https://www.legal-tools.org/
doc/1g2arj/); UNICEF, Prohibition of discrimination, harassment, sexual harassment and
abuse of authority, 30 November 2012, CF/EXD/2012-007, section 1.1(b) or (c); UN Devel-
opment Program, “Duties and Responsibilities”, in HR User Guide, January 2010, section I
para. 5; United Nations Relief and Works Agency (‘UNRWA’), Prohibition of Discrimina-
tion, Harassment – including Sexual Harassment – and Abuse of Power, General Staff Circu-
lar No. 06/2010, para. 6(c).
55
US Supreme Court, Harris v. Forklift Systems, Inc., Judgment, 9 November 1993, No. 92-
1168, pp. 17, 21 (emphasis added).

as well as the specific objective environmental conditions that a ‘reasona-

ble person’ would find intimidating or offensive are taken into account. 56
14.3.2. Second Element: Unwelcome
The element that behaviour must be ‘unwelcome’ is the core element of the
definition of sexual harassment. Even if a certain conduct, when applying
the objective test, amounts to sexual harassment according to a reasonable
person’s perception, it can lose its harassing nature (and thus its qualifica-
tion as prohibited conduct) if the target of the conduct welcomes it. For ex-
ample, let us consider a male colleague who, during office hours, intrudes
the sphere of privacy of his sitting female colleague by massaging her neck.
Generally, such behaviour would be perceived by a reasonable person as
constituting sexual harassment. However, if the colleague reacts to the skin
contact and massage by saying “thank you, this relieves my pain” or “that
is exactly what I had asked from you earlier” then such a reaction is indica-
tive that the conduct of the office mate was probably welcomed by her. For
instance, regarding the putting of a colleague’s toe and thumb in the mouth
by another co-worker and causing pain by biting, as it happened in the case
detailed in Section 14.4.4., the UNAT pointed out that “no conduct auto-
matically rises to the level of sexual harassment merely on the basis of its
sexual overtones and lack of ‘appropriateness’ […]”. 57
To determine whether a certain conduct satisfies the objective test of
sexual harassment, the ‘welcome’ or rather ‘unwelcome’ determination is
therefore key. The UNDT held that
[i]n every definition or examination of the subject of sexual
harassment, it is the unwelcome and unwanted nature of the
conduct on the part of the recipient which makes it prohibited
conduct capable of constituting misconduct on the part of the
staff member engaging in such conduct. 58
Analysis of the jurisprudence of UNAdminT reveals that judges in
the first and second instances occasionally differ, whether contentious con-
duct in question was indeed ‘unwelcome’. The UNAT overturned cases 59
56
Christopher Uggen and Amy Blackstone, “Sexual Harassment as a Gendered Expression of
Power”, in American Sociological Review, 2004, vol. 69, no. 1, p. 64 (65).
57
UNAT Bagot judgment, para. 62, see above note 34.
58
UNDT, Applicant v. S-G, Judgment, 23 June 2011, UNDT/2011/106, para. 43 (‘UNDT –
judgment on friendship gone cold’) (https://www.legal-tools.org/doc/2rkaem/).
59
UNAT Bagot judgment, see above note 34; UNAT Perelli judgment, see above note 34.

because the judges disagreed with the assessment of the first instance
courts whether certain conduct was ‘unwelcome’ or not.
14.3.2.1. Welcome or Unwelcome Conduct
At the core of many sexual harassment cases lies the disagreement of the
alleged offender and target about whether certain conduct was unwelcome
or not. While the target will claim that behaviour was certainly ‘unwel-
come’, the alleged offender will claim the exact opposite. Thus, as both
sides find themselves involved in disciplinary proceedings, one as the al-
leged offender and the other as the target, they are bound to disagree on this
key element.
The UN jurisprudence adopts a conservative stance on which per-
spective, the one of the alleged offender or the affected individual, is ulti-
mately decisive for determining whether a conduct was welcome or not.
The UNAT, by requiring that “the alleged offender should reasonably be
able to understand that his advances are not welcome”, 60 appears to empha-
size the perspective of the alleged offender. Only if the alleged offender
was reasonably able to understand or should reasonably have known 61 that
the conduct was unwelcome, then this conduct may amount to sexual har-
assment.
In conclusion, the judges do not rely on the perspective of the target,
but rather on one of the alleged offender to determine whether conduct is
‘unwelcome’. One can interpret this phrase to point out that the burden of
proof that the alleged offender was “reasonably able to understand” lies
squarely with the administration or the alleged target. 62 The administration,
which usually intends to implement the zero-tolerance 63 approach on sexu-
al harassment by pursuing the alleged offender, has to prove that the person
who engaged in the contested conduct disregarded certain ‘sign-posts’ or
‘signals’ which would have enabled a reasonable person to conclude that
60
61
UNAT Perelli judgment, para. 105, see above note 34.
62
UNAdminT, Belas-Gianou v. S-G, Judgment, 28 July 1995, Judgement No. 707, p. 30
(‘UNAdminT judgment Belas-Gianou’) (https://www.legal-tools.org/doc/cbcpj7/). “It is, of
course the responsibility of the person alleging sexual harassment […] to produce convinc-
ing evidence in support of the allegations”.
63
UN Chief Executives Board for Coordination (‘CEB’), Summary of deliberations, 24 July
2018, CEB/2018/1, Annex I, pp. 17, 18 (‘CEB First deliberations 2018’) (https://www.legal-
tools.org/doc/g4iqls/); CEB, Summary of deliberations, 18 January 2019, CEB/2018/2, pa-
ra. 53(a) (‘CEB Second deliberations 2018’) (https://www.legal-tools.org/doc/hfwl5d/).

an advance was not welcome. For behaviour to be ‘unwelcome’, the al-

leged offender should “reasonably be able to understand” that such conduct
is not welcome. 64 This means that the alleged offender must have had actu-
al knowledge or, lacking thereof, at least constructive knowledge that cer-
tain conduct was unwelcome. 65
Actual knowledge can be inferred if the alleged offender continues
with his or her sexual behaviour despite the target or affected individual
indicating clearly that the conduct is unwelcome. 66
14.3.2.2. Boundaries
To distinguish between an unwelcome and a welcome conduct, the admin-
istrative jurisprudence focuses on the concept of boundaries. If the behav-
iour and expressions of the target demonstrate it had set boundaries in place
before the conduct occurred, and nevertheless the alleged offender crossed
these, then this indicates that the offender indeed transgressed and that the
behaviour was “unwelcome”.
Both principal administrative instructions of the UN encourage the
affected individual to inform the alleged offender:
The 1992 UN Administrative Instruction stated “[i]ndividuals who
believe that they are being [sexually] harassed are encouraged to notify the
offender that his or her behaviour is unwelcome”. 67 Again, the 2008 UN
Administrative Instruction encourages aggrieved persons to inform the of-
fender, but voices also understanding if this does not occur:
Aggrieved individuals are encouraged to notify the offender of
their complaint or grievance and ask him or her to stop as, in
some instances, the alleged offender may not be aware that his
or her behaviour is offensive. However, the disparity in power,
[authority] or status or other considerations may make direct
confrontation difficult, and aggrieved individuals are not re-
quired to confront the offender. 68
It is the latter cases in which an aggrieved person has boundaries in
place, and chooses not to inform the alleged offender to avoid confronta-
64
65
UNDT Perelli judgment, paras. 102–104, see above note 34.
66
Ibid., para. 103.
67
1992-UN-AI, section 3, see above note 28.
68
2008-UN-AI, section 5.5, see above note 3; UNDT Perelli judgment, para. 104, see above
note 34.

tions, that make it difficult to decide whether certain conduct was unwel-
come.
If the affected individual claims boundaries and that these were
transgressed, then the alleged offender can raise the defence that a reasona-
ble person was unable to note these boundaries. The alleged offender then
claims a subjective deficit: to be unaware of the existence of boundaries
because a reasonable person in the same shoes would have been unaware
too.
14.3.2.3. Constructive Knowledge
In response to a defence that the alleged offender could have reasonably
been unaware and was thus unable to notice the boundaries, the jurispru-
dence analyses whether the specific circumstances of each situation create
constructive knowledge of the alleged offender that conduct was unwel-
come. 69 Constructive knowledge “ensures accountability for sexual har-
assment that is conducted out of thoughtlessness or irresponsibility but
nevertheless creates problems for affected staff members”. 70
The UNAT required in Bagot v. S-G that it should be established in a
“clear and unambiguous way that [the alleged offender] had constructive
knowledge of the unwelcome nature of his actions”. 71
Constructive knowledge can flow from a variety of sources. For ex-
ample, after a former male colleague expressed to a female co-worker in an
email that he could “help her getting pregnant” the target of this sexual ad-
vance responded “if I will be ever in a position to share a room one of us
must sleep on the floor”. 72 The same target of this advance also sent anoth-
er email clarifying “I do not want to give you any false hope because I do
not want to have sex with you. I never wanted that”. 73 Both emails set a
boundary, regardless of an otherwise longstanding close friendship with
sexual overtones, constituting at least constructive knowledge that further
sexual advances are ‘unwelcome’ in case the colleague chooses to engage
in further innuendos.
69
UNDT Perelli judgment, para. 104, see above note 34.
70
Ibid.
71
72
UNAT, Applicant v. S-G, Judgment, 28 March 2013, 2013-UNAT-280, para. 45 (‘UNAT –
judgment on friendship gone cold’) (https://www.legal-tools.org/doc/6ivbku/).
73
Ibid., para. 46.

14.4. Case Law on Sexual Harassment

This section presents a brief overview of relevant case law on sexual har-
assment. In the following, a number of judgments by different international
tribunals will be presented in turn.
14.4.1. First Judgment on Sexual Harassment at the UN
The events leading to the case Belas-Gianou v. S-G occurred between July
and November 1991, before the UN had formally defined and implemented
the definition of sexual harassment through ST/AI/379 in October 1992.
However, this instrument was used as a reference by the administration and
during the appeals proceedings. 74 The affected individual claimed that the
supervisor had entered the office without knocking, expressing pleasure at
the thought that, due to a colleague’s absence, the supervised staff member
would work alone with him. The supervisor then came for unduly long pe-
riods to his staff’s office complaining about his wife, stating he would be
unhappily married, addressing the staff member as ‘darling’ or ‘dearest’,
making sexual innuendos in Arabic which the affected staff member did not
understand and could therefore not substantiate further. 75 The target reacted
embarrassed and, being fearful of possible consequences, did not object to
the supervisor. 76
The UNAdminT denied sexual harassment had occurred, emphasiz-
ing the absence of some indication that the alleged offender was either on
notice or “should reasonably have realized from the circumstances that the
conduct was unwelcome, might be viewed as being of a sexual nature and
as creating an offensive working environment”. 77 The judges stressed that
it is important that the aggrieved person makes a clear and unequivocal
complaint promptly, if unable to stop the interaction immediately by less
formal means. 78
The judges’ analysis of the conduct in question considered the views
of the target, but with caution. The judges held that a
belief in good faith that one has been the victim of sexual har-
assment, however strongly held, does not automatically mean,
74
UNAdminT judgment Belas-Gianou, para. 63, see above note 62.
75
Ibid., p. 31, section VI.
76
Ibid., p. 31, section VI(e) and p. 33, section VIII.
77
Ibid., p. 34, section IX.
78
Ibid., p. 35, section X.

without more, that sexual harassment occurred. […] The enu-

merated items are at most either ambiguous, or the possibility
of a relationship between them and conduct of a sexual nature
is both tenuous and remote. 79
14.4.2. A Close Friendship with Sexual Overtones Went Cold

This case centred around a five-year-long close and intimate friendship
with sexual overtones between a superior and a subordinate, both married
to other partners, which escalated into sexual harassment claims after the
superior had sent a picture of his genitalia to the subordinate and had tried
to kiss her. 80
Having entertained a close friendship at one duty station, the alleged
offender had expressed sexual advances towards the target months before
the latter joined the alleged offender at a new duty station. The alleged of-
fender wrote less than a year before the target resumed duties:
Over the years you have resolutely resisted all my advances
[…] I just had and still [missing word] overriding desire to
make love to you and be inside you. I know you didn’t want
[word indecipherable] and, of course, I accept your view. I
just wish we could be together here in East Timor. 81
Shortly before the target of this advance resumed duties at the UN the al-
leged offender wrote “You could always get pregnant early if you are wor-
ried, maybe I could help with that!” and received the following response
from the target of this new advance
Wooow, Eih, hold on!!! […] And if I will ever be in a position
to shar [sic] your room, one of us must sleep on the floor!!!
Punto. :) P.S.: I note that we are now joking only, we are really
good friends and there is nothing that can change that (just do
not mention sex or sleeping ina [sic] same room and every-
thing will be fine). :) 82
The next day, the affected individual wrote
79
Ibid., p. 34, section X. Compare also p. 40, section XIX: “In essence, the Applicant’s claims
of sexual harassment […] find support only in her own statements to the Tribunal and to
others to whom she says she conveyed them”.
80
UNDT – judgment on friendship gone cold, paras. 42, 44, 47, 134, 135, see above note 58;
UNAT – judgment on friendship gone cold, para. 39, see above note 72.
81
Ibid., para. 41.
82
Ibid., para. 45.

But I do not wont [sic] to give you any false hope becouse [sic]
I do not wont [sic] to have sex with you. I never wonted [sic]
that and morre [sic] correct I do not wont [sic] to have sex
with anybody at all. I do not joke now. 83
Four weeks after the target had resumed duties at the duty station, the
alleged offender sent via email a photo of his genitalia to the subordinate
who responded
I simply cannot belive [sic] that you have sent me this photo. I
have not seen your intimate part before definetly [sic] and I
truly hope you are joking only. What on earth made you to
take this kind picture of your exposed body and send it to me
[…] I can forgive you only if you were drunk completely [sic]
when done so. 84
However, the next morning, the affected individual joked with the superior
that “it was well shaved”. 85 About two weeks later, the targeted person
moved out of the hotel in which the alleged offender was also staying, in a
separate room. 86
The first instance court and the UNAT disagreed whether the conduct
of the superior who had sent a photo of his genitalia was ‘unwelcome’ pur-
suant to 1992 UN Administrative Instruction.
14.4.2.1. UNDT
The UNDT focused on the overall behaviour displayed between the superi-
or and the subordinate by claiming:
The charge of sexual harassment against the Applicant cannot
be sustained in the circumstances. To the extent that [the af-
fected individual] was willing and happy to engage in sex talk
via emails, telephone, text messages and in-person with the
[alleged offender], the [affected individual] cannot blow hot
and cold deciding after the fact and several months later after
other disagreements that [the affected individual] was sexually
harassed based on incidents [the affected individual] had at
the time they occurred joked about. 87
83
Ibid., para. 46.
84
Ibid., para. 50.
85
UNDT – judgment on friendship gone cold, para. 67, see above note 58.
86
Ibid., paras. 44, 65; UNAT – judgment on friendship gone cold, para. 51, see above note 72.
87
UNDT – judgment on friendship gone cold, para. 187, see above note 58 (compare also
paras. 64, 65).

In essence, the UNDT argued that the alleged conduct was not unwel-
come. 88 The UNDT found that what happened between the affected indi-
vidual and the alleged offender was “a personal and intimate feud between
two consenting adult staff members”. 89
14.4.2.2. UNAT
The UNAT disagreed, finding the conduct was ‘unwelcome’: From the out-
set the affected individual “did not share the [alleged offender’s] desire to
pursue a sexual relationship”. 90 The judges held that the target had set
boundaries while being recruited by the alleged offender for a post under
his supervision:
The transmission by the [offender] of a photograph of his gen-
italia to a female colleague, much less a female colleague un-
der his direct supervision, irrespective of whether the photo-
graph was sent within or outside work hours, can at its best
[…] 'be characterised as outrageous, and most probably un-
wanted’. In the present case, there was no “probability” sur-
rounding the issue as to whether this action was unwanted or
unwelcome, given the boundaries which the [target] had set in
her correspondence of January 2005. […] The fundamental
basis of the [alleged offender’s] and [target’s] relationship,
from 15 February 2005 onwards, was that of supervisor and
supervisee. Given the unequal nature of this relationship and
the boundaries which the [target] had attempted to establish,
together with the [alleged offender’s] breach of those bounda-
ries, […] the [offender’s] very graphic conduct on 15 March
2005 and its unwelcome nature rendered the [target’s] work
environment “offensive” within the meaning of ST/AI/379. 91
The judges continued that the offender’s
approaches to the [target] remained sexual in nature, notwith-
standing the absence of overt sexual comments or entreaties
88
Compare ibid., para. 67: “It can be deduced also from later communication between [the
affected individual and alleged offender] that their friendship continued nevertheless and
that [the affected individual] did not find the photograph [of the penis] unwelcome or offen-
sive”. Further, the judge observed in this same case, with regards to workplace harassment:
“Such conduct must be unwelcome in the sense that the alleged victim did not solicit, incite
or court the conduct and regarded it as undesirable and offensive” (compare also para. 59).
89
Ibid., para. 181.
90
Ibid., para. 59.
91
UNAT – judgment on friendship gone cold, para. 60, see above note 72.

on the part of the [offender]. It is apparent from the [targets]

responses to the [offenders] communications and notwith-
standing any concessions [the target] made to the friendship
they had, that the sexual context of the [offenders] conduct
and the jealousy and possessiveness it gave rise to remained
unwelcome to the [target]. Moreover, we are satisfied that the
totality of the circumstances in which the [target] found
[it]self in the period from February to May 2005 constituted
circumstances which could reasonably […], under any stand-
ard, [be] unwelcome to the [target] as well as an offensive,
and on occasions intimidating, work environment for the [tar-
get]. 92
[T]he UNDT failed manifestly to attach sufficient weight
to the unequal nature of the respective positions of the target
and the offender within the Organisation [and] […] to the
strength of the [target’s] rejection of the [offender’s] desire for
an intimate sexual relationship with [the affected individual].
Thus, we regard as manifestly unreasonable the Dispute Tri-
bunal’s finding that the [target] ‘was a consenting partner in
an intimate adult relationship where no holds were barred as
far as topics for discussions were concerned,’ particularly
since the target, as evident from [his/her] e-mails, had set out
in clear terms for the [offender] the parameters of [his/her]
non-sexual relationship with [him/her]. 93
14.4.3. UNHCR Case in Budapest

Another case related to a senior UNHCR staff member who had arrived in
Budapest and had received telephone numbers from local staff members to
assist him. A dynamic ensued in which the senior sent numerous SMSs and
emails asking staff out, including to come to the senior’s apartment to hang
curtains. The superior mentioned massages in the office and finally faced
three allegations of inappropriate physical touching, including once during
a salsa evening and twice in the office, specifically once on the leg, and on
the other occasion by giving a brief massage on a subordinate’s neck. 94
The UNDT found that, if established as true, the conduct could be
described as sexual harassment, it would have been offensive and unwel-
92
Ibid., para. 62.
93
Ibid., para. 63.
94
UNDT, Applicant v. S-G, Judgment, 16 March 2011, UNDT/2011/054, paras. 123, 124
(https://www.legal-tools.org/doc/c4yvag/).

come and, at the very least, would have made the subordinates uncomfort-
able in his presence, and impacted on staff members’ relationship to the
superior. 95 The superior was not denying that he had spoken about massag-
es, had sent numerous messages, had touched his staff and talked with one
subordinate about marriage, but emphasised that he was also asked a lot of
questions by the staff concerned about his own mixed cultural upbringing
and therefore neither the conversations nor actions would have had a sexual
connotation. 96
Having listened to the superior, the UNDT observed that at least one
witness also reported about email interactions which were not unwelcome,
and that the superior acknowledged discussions about massages and other
topics which one could interpret “in more than one way”. 97 Overall, the
UNDT emphasised that the investigation leading to the summary dismissal
of the superior was not conducted properly, and was “one-sided”. 98 This
left the judge with two possibilities: either the subordinated staff, having
learned from each other, brought their genuine and serious concerns jointly
about the alleged offender to the attention of senior management, or the
subordinates did not like his management style and elevated some concerns
to engineer his removal. 99 As the investigation and disciplinary proceedings
failed to clarify which of both options applied, the UNDT set aside the
summary dismissal of the superior. 100
This case demonstrates how crucial a proper investigation is. The in-
vestigation should not only touch upon the facts constituting sexual har-
assment, but also cover the perceptions of both sides of the contested con-
duct, and the overall dynamic the conduct has at the workplace. Due to the
UN’s zero-tolerance policy, allegations of sexual harassment, if proven at
the end of a proper investigation, are likely to result in the removal of the
alleged offender. Thus, the facts must be proven to the ‘clear and convinc-
ing’ evidence standard required for dismissal. 101
95
Ibid., para. 125.
96
Ibid., paras. 131–133, 135.
97
98
Ibid., para. 141.
99
Ibid., paras. 140, 139.
100
Ibid., paras. 143, 144.
101
UNAT, Molari v. S-G, Judgment, 21 October 2011, 2011-UNAT-164, para. 2 (‘UNAT
judgment Molari’) (https://www.legal-tools.org/doc/6r0pmm/).

14.4.4. Bagot v. S-G

In this case, the alleged offender was a director within the department of
internal oversight in Amman in Jordan, and the target was a contractor. On
a work-free day both went first to a restaurant and to the director’s apart-
ment where they discussed personal matters ending in the director massag-
ing the contractor until, at some point, the director took the target’s toe and
thumb in the mouth and bit, causing pain. 102 The target feigned an emer-
gency at home as an excuse to leave, declined the offer to be driven home,
and left alone. 103 The alleged offender then contacted the target via SMS to
learn its current location, drove there, repeatedly contacting the target from
there, and finally reached the affected individual with whom the director
then phoned for 17 minutes. 104 Over the phone, the target suggested the
alleged offender “should go home, don’t trouble yourself, I am ok” to
which the alleged offender stated “we are meant to be together, we are soul
mates, we are destined to be together, the universe had this plan, […] this is
the way the universe is giving you a choice and the choice is yours but you
have to make the choice tonight”. 105
The alleged offender insisted he would stay “outside the target’s
house for 2, 3, 4, hours, however long it takes” and was told to “go
home”. 106 The alleged offender returned to the apartment, sent two more
unanswered text messages, and, in the early morning of the following day,
apologized by SMS, subsequently calling again with getting an answer. 107
The first and second instance courts disagreed whether the conduct
of the alleged offender was ‘unwelcome’.
14.4.4.1. UNRWA Dispute Tribunal
The Dispute Tribunal of the UNRWA argued the conduct of the alleged of-
fender was welcome throughout the lunch and in the apartment, as the af-
fected individual initially did not object to the physical contact (the mas-
sage) up to the point of putting the toe and thumb into the mouth and the
102
UNAT Bagot judgment, paras. 2, 3, see above note 34.
103
Ibid., paras. 3, 54, 55.
104
105
Ibid., para. 55.
106
Ibid., para. 3.
107
Ibid.

subsequent biting. 108 The Dispute Tribunal pointed out that until the target
objected (following the biting), the alleged offender who then stopped
could reasonably consider that the behaviour until then was not unwel-
come. 109 However, following the target abruptly leaving the apartment and
having declined the offer to be driven home, the first instance judge found
that “no reasonable person could have doubted that the emergency situation
was only an excuse to leave his apartment and that any other action on his
part would be unwelcome”. 110 Thus, in these circumstances, all subsequent
calls and text messages constituted sexual harassment:
In view of the manner in which the meeting at the apartment
had ended,[…] [I]t was obvious that [the affected individual]
did not want to talk to the [alleged offender] any further.
Therefore, the [alleged offender’s] actions in calling [the tar-
get] six times between 6:06 p.m. and 6:29 p.m. and sending
[…] three text messages between 6:26 p.m. and 9:20 p.m. cer-
tainly constituted unwelcome conduct. Furthermore, the con-
tent of the 17-minute conversation […] does constitute sexual
harassment. The sexual harassment continued [the next day]
when the Applicant sent a text message to [the target] at 5:47
a.m. and attempted to call […] at 3:26 p.m. 111
14.4.4.2. UNAT
The UNAT disagreed with this assessment and doubted that the conduct of
the alleged offender following the biting was unwelcome, at least the al-
leged offender had no constructive knowledge of it.
The Appeals judges pointed out that the reasoning of the UNRWA’s
judges “does not reveal in a clear and unambiguous way that [the alleged
offender] had constructive knowledge of the unwelcome nature of his ac-
tions”. 112 For the contested conduct to amount to sexual harassment,
it is not enough to be found ‘inappropriate.’ No conduct auto-
matically rises to the level of sexual harassment merely on the
108
UNRWA Bagot judgment, paras. 104–110, see above note 34; compare UNAT Bagot judg-
ment, paras. 49, 51, 52, see above note 34.
109
Ibid., para. 110.
110
Ibid., para. 112.
111
Ibid., para. 114.
112

basis of its sexual overtones and lack of ‘appropriateness’ […]

on foot of its ‘inappropriate’ character. 113
The judges observed that it was
not evident that [the target] had set out boundaries in clear
terms for [the alleged offender] at this time. In any case, when
[the affected individual] did, as happened in the apartment,
when [the alleged offender] ‘bit her toe and thumb’, [the al-
leged offender] immediately complied with her request to stop.
[…] neither the manner in which the meeting at the apartment
had ended, nor the unanswered phone calls, made by [the of-
fender] between 6:06 p.m. and 6:29 p.m. [on the day of the in-
cident] or the text message to [the target] at 5:47 a.m. and the
attempts to call her at 3:26 p.m. [the next day] made it obvi-
ous that [the alleged offenders] conduct was unwelcomed […]
in view of the fact that the latter answered his phone call at
6:29 p.m. [on the day of the incident] and talked with him for
17 minutes without objecting to his calling. As for the content
of the 17-minute conversation […], it cannot be considered as
per se constituting sexual harassment. These facts do not con-
stitute clear and convincing evidence of misconduct. 114
14.4.5. Perelli v. S-G

Similarly, in this case the first and second instance judges disagreed on
whether the conduct of Perelli was unwelcome and whether the alleged of-
fender had constructive knowledge of it.
Perelli was a director in a division of the UN. An external manage-
ment review revealed numerous managerial shortcomings. An investigation
found that a persistently sexually charged atmosphere existed within the
unit headed by Perelli: 115 “crude language, sexual jokes and refer-
ences/innuendo to [Perelli’s] sex life and inquiries/references to staff’s sex-
ual habits, often in front of others” and “two instances of overt sexual har-
assment on the part of […] Perelli” occurred. 116 Perelli routinely used
coarse and profane language, made references to sexual matters and used
sexual innuendo, on a number of occasions referred to bottoms of male
staff members and engaged at least in one instance of inappropriate physi-
113
Ibid., para. 62.
114
115
UNAT Perelli judgment, paras. 2, 3, 6, see above note 59.
116
Ibid., paras. 6, 8b.

cal contact with a male subordinate; 117 overall some staff members be-
lieved in good faith that the offensive, hostile or intimidating environment
in the unit was created or further aggravated by Perelli. 118
The alleged offender argued that in seven years at the UN, no staff
member ever complained to management about sexual harassment by
Perelli. 119
14.4.5.1. UNDT
The UNDT argued that Perelli was
a senior manager and head of [a] division in a multicultural
organisation. The workplace of the UN is governed by stand-
ards of conduct set by the Charter, staff regulations, rules and
policies. Staff members have at least presumptive knowledge
of these exacting standards, and, particularly given the posi-
tion of seniority, the alleged offender should have been aware
that such conduct breached them. It was the alleged offender’s
responsibility to ensure that the workplace Perelli managed
was free of sexually explicit behaviour and that Perelli did not
contribute to or encourage it. 120
14.4.5.2. UNAT
The UNAT was aware that Perelli was not on actual notice about the un-
welcome nature of the conduct. The court therefore focused on the issue,
whether the UNDT’s conclusion that Perelli had no constructive knowledge
of the unwelcome nature of one’s own actions, is factually and legally sus-
tainable.
The UNAT referred to a report of the Joint Disciplinary Committee
that found: 1) Perelli did not introduce coarse language and profanity in the
unit as such conduct existed there before, 2) subordinates issued no warn-
ing or request about Perelli’s behaviour during the six years tenure as Di-
rector, 3) body language was insufficient to demonstrate that Perelli was
put on notice; and 4) if oral complaints reached Perelli and other senior of-
ficials, then these related to management issues and not sexual harassment
117
UNDT Perelli judgment, para. 95, see above note 34; compare UNAT Perelli judgment,
para. 55, see above note 59.
118
Ibid.
119
Ibid.¸ para. 106.
120
Ibid.¸ para. 107.

issues. 121 The panel found that Perelli’s contention was credible: having
received no clear warning signals from staff that her conduct was seen as
offensive and/or inappropriate, Perelli was unaware that her own conduct
was considered by some as inappropriate and unwelcome; in such circum-
stances, a reasonable person would not necessarily have been aware, given
the existing differences in cultural backgrounds and professional work ex-
periences. 122 The appeals judges concurred with the panel’s assessment and
found that Perelli had no constructive knowledge that her own conduct was
unwelcome by staff.
14.5. Superiors
By virtue of their position, perceived and real power, superiors can greatly
influence the careers and well-being of staff. Thus, they are expected to set
the example of the highest standards of behaviour. As they are expected to
perform a role model function, their entails not only to refrain from engag-
ing in any conduct potentially amounting to sexual harassment, but also to
inform staff about their rights, including the possibility to report miscon-
duct, and, if reports are then made, to react to allegations in a prompt, im-
partial and fair manner.
The evolution of these functions of superiors should be briefly
sketched out. The UN Administrative Instructions moved from vague to
specific in this regard. The 1992 UN Administrative Instruction simply re-
ferred to “senior member of the department or office” 123 without clarifying
whether this person is the direct supervisor, a mid-level manager or top
manager in the office. By contrast, the 2008 UN Administrative Instruction
introduces a distinction between managers and supervisors 124 on the one
hand and “heads of department/office/mission” on the other hand. 125
14.5.1. Acting Twofold upon Receiving Information
Both UN Administrative Instructions from 1992 and 2008 provide that su-
periors exercise a twofold function in relation to informal and formal set-
tlement of situations arising out of allegations of sexual harassment. The
1992 UN Administrative Instruction leaves it to the discretion of the ag-
121
Ibid., para. 64.
122
Ibid.
123
124
2008-UN-AI, section 3.2, see above note 3.
125
Ibid., section 3.3.

grieved individual whether to seek advice from a “senior member of the

department or office”. If informed, this ‘senior member’ could then either
discuss the matter discreetly with both sides of the allegation of sexual har-
assment to achieve an informal resolution 126 or, if the reported conduct
“may constitute misconduct”, this senior will report the matter up in the
chain of command. 127 Thus, the “senior member” envisaged by the 1992
UN Administrative Instruction had discretion (“where appropriate”) to pur-
sue an informal settlement and, if allegations of misconduct were involved,
was bound (“will be reported”) to inform the higher echelons.
A senior member’s report on allegations of sexual harassment has the
same effect and function as a formal complaint of the aggrieved individual
in that both enable the UN Office of Human Resources Management to
trigger an initial investigation and fact-finding. 128 Thus, the 1992 UN Ad-
ministrative Instruction provided a twofold role of a senior member: if suit-
able, the superior conducts an informal settlement and/or files a report of
sexual harassment to have the higher echelons trigger a formal procedure
of fact-finding and investigation.
The 2008 UN Administrative Instruction repeated the above func-
tions, including the superior’s and supervisor’s possible involvement in the
informal settlement of the situation arising out of sexual harassment allega-
tions. 129 However, in a list of several possible entities carrying out an in-
formal settlement, the 2008 UN Administrative Instruction listed the super-
visor only as the last option. 130
In 2018, the UN model policy on sexual harassment provided three
variants of settlement: informal settlement, formal reporting to trigger fact-
finding/investigation, or involving an ombudsman. Regarding the role of
superiors, the UN model policy on sexual harassment specifically sketches
126
127
Ibid., section 7.
128
Ibid., section 9.
129
2008-UN-AI, sections 5.3., 5.6(j), 5.7, 5.9, 5.11, see above note 3, namely the second sen-
tence referring indirectly to the superior as the “third party who has direct knowledge of the
situation”.
130
Ibid., section 5.6(j). Compare also 1992-UN-AI, see above note 28, which mentions, in sec-
tion 5, several persons able to conduct informal settlements before mentioning, in section 6,
first the Personnel Officer and, finally, the “senior member of the department”.

out how a ‘managerial intervention’ to assist an affected individual should

occur: 131
Targets may choose to raise allegations of sexual harassment
with their superiors who then should inform about the respon-
sible office which provides confidential advice. Further, man-
agers themselves should provide advice, assistance, infor-
mation and support in a timely, sensitive and impartial manner.
Managerial intervention is thereby one of several options with
alternative options being the filing of a formal complaint or
seeking the service of an ombudsman. 132
14.5.2. Training in Informal Mediation to Become A ‘Role Model’

The 2008 UN Administrative Instruction obliges superiors to participate in
online training courses on preventing (sexual) harassment and also to re-
ceive targeted training in informal and formal resolution techniques as a
requirement for advancement. 133 The latter obligation enables superiors to
understand the role they would have to play in an informal settlement be-
fore allegations of sexual harassment being brought to their attention. In
2018, the CEB created a common guide for managers on prevention of and
response to sexual harassment in the workplace. 134
Furthermore, 2008 Administrative Instruction puts all managers and
supervisors under the
duty to take all appropriate measures to promote a harmonious
work environment, free of intimidation, hostility, offence and
any form of prohibited conduct. They must act as role models
by upholding the highest standards of conduct. 135
The case Portillo Moya v. S-G, which involved the supervisor of a
warehouse of the WFP, demonstrates how a superior failed to meet and re-
peatedly violated this standard. Portillo Moya had made sexual jokes, had
used offensive words and nicknames in the Portuguese language, including
but not limited to mierdosa (‘piece of shit’) and penderja (‘dumb’) to ad-
dress a colleague about whose intimate life the offender had sent emails to
131
UN model policy on sexual harassment, section IV, sub-paras. 2–4, see above note 2.
132
Ibid., p. 6, explanatory notes.
133
Ibid., sections 4.2, 4.3.
134
CEB First deliberations 2018, para. 49, see above note 63; CEB Second deliberations 2018,
para. 52(d), see above note 63.
135
Ibid., section 3.2.

another staff member. 136 On other occasions, Portillo Moya had used the
swear words puta (‘fuck’), hijueputa (a shorter form of ‘son of a bitch’)
claiming not to have meant her colleagues, but to address one’s frustra-
tion. 137
The administration informed Portillo Moya to have displayed a
standard of conduct, which was below that required in international civil
service. 138 Particularly, section 13 of the applicable WFP’s Directive states
“[e]mployees with supervisory and/or management responsibilities are re-
sponsible for: maintaining a high standard of personal conduct in dealing
with all employees, and leading by example in maintaining the personal
dignity of employees […]”. 139 The administration imposed the sanction
‘separation from service’ on Portillo Moya. 140
14.5.3. Senior Position Demands a Higher Level of Sensitivity
The UNAT held in Michaud v. S-G that a senior position demands and jus-
tifies a higher level of sensitivity. Among investigators in the UN’s Office
of International Oversight, a dispute arose out of an email exchange occur-
ring between a superior and subordinate about ten days after the latter had
joined an investigative mission in Afghanistan. 141 The UNAT observed “the
e-mails speak for themselves and invite admonition, if not censure, without
further ado” 142 because they are inappropriately suggestive and contain
comments of the superior intended to suggest sexual interest. 143 Both the
UNDT and the UNAT agreed that the sanction of written reprimand im-
posed by the administration was appropriate. 144 The UNAT admitted that
the words contained in the emails would be
136
UNDT judgment Portillo Moya, paras. 7, 31(d), 38, see above note 34. Translations supplied
in the source.
137
138
Ibid., para. 8.
139
WFP policy on sexual harassment, p. 3, para. 13, see above note 53.
140
UNDT judgment Portillo Moya, paras. 74, 75, 8, 10, 25, see above note 34.
141
For the content of the email exchange see UNDT judgment Michaud, paras. 4–7, see above
note 34.
142
143
Ibid., para. 61.
144
UNDT judgment Michaud, para. 70, see above note 34; UNAT judgment Michaud, paras. 63,
61, see above note 34.

low on the bar of sexual harassment and legitimately may be

seen as flirtatious and relatively innocent. They assume great-
er impropriety, however, because they emanate from a senior
investigator with specific responsibility under his job descrip-
tion to investigate the misconduct of others. 145
14.5.4. Heads of Department, Office or Mission

While 1992 UN Administrative Instruction had created regarding superiors
a conscious ambiguity by introducing the category of ‘senior member of
the department or office’, the 2008 UN Administrative Instruction changed
this approach by introducing a distinction between ordinary and top man-
agers. In Sections 14.5.1 to 14.5.3, the rules applicable to ordinary manag-
ers, which 2008 UN Administrative Instruction introduces as “managers
and supervisors”, 146 have been discussed. This section introduces the addi-
tional rules and responsibilities applicable to the heads of department, of-
fice, or mission. The most senior staff members are responsible for the
overall implementation of the prohibition of sexual harassment, including
by “holding all managers and other supervisory staff accountable for com-
pliance”. 147
As heads provide performance appraisals to subordinated managers,
they are also to include whether and how subordinated managers dis-
charged their obligation to promptly, impartially, and fairly address com-
plaints of sexual harassment. 148 Further, they should ensure that subordi-
nated staff undertakes the required mandatory training to prevent sexual
harassment. 149
At least two cases adjudicated by the UN administrative tribunals
address allegations of sexual harassment surrounding heads of offices,
which are briefly outlined below.
14.5.4.1. Khan v. S-G
Khan, then head of a WFP Sub-Office in Quetta, Pakistan, had offered two
administrative assistants his “friendship”, which was refused. Khan contin-
ued to subject one assistant to unwelcome sexual comments, touching, re-
145
146
147
Ibid., section 3.3.
148
Ibid., section 3.2.
149
Ibid., section 4.4 in connection with section 4.2.

questing for sex, and kissing the aggrieved individual on the face. 150 An-
other staff member whose contract was expiring understood Khan’s actions
as requesting sexual favours. 151 The WFP’s policy clarifies, “When this
[sexual] harassment is committed by a person in a position to influence the
career or employment conditions of the victim, the sexual harassment is
more offensive as it may also constitute abuse of authority”. 152
The UNDT found Khan’s conduct constituted sexual harassment 153
and that the
Head of the Sub-Office […] was required to respect high pro-
fessional and moral standards, […]had direct responsibility to
both prevent and ensure that the workplace [the head] man-
aged was free of offensive and harmful behaviour. Contrary to
his obligations, [the head] not only disregarded the interest of
the staff members in his office but […] was actually directly
responsible for creating a hostile working environment. 154
These acts were aggravated because the position of head of a sub-office
means the superior can influence the employment conditions of the staff. 155
14.5.4.2. Perelli v. S-G
The case Perelli v. S-G has been already discussed. 156 It related to a director
of a division who had found a persistently sexually charged atmosphere
when taking up office 157 and who did little, if anything, to change this. In-
deed, insufficient proof existed that this head of the division had construc-
tive knowledge satisfying the “clear and convincing” 158 evidence standard
required for dismissal that subordinates felt sexually harassed. It is under-
150
UNDT – judgment Khan, paras. 59, 69, see above note 34.
151
Ibid., para. 65.
152
WFP policy on sexual harassment, p. 13, see above note 53.
153
UNDT – judgment Khan, para. 76, see above note 34.
154
Ibid., para. 110.
155
Ibid., para. 111.
156
See Section 14.4.5. above.
157
UNAT Perelli judgment, paras. 6, 34, 64, see above note 59: “Perelli did not introduce
coarse language and profanity in [this office]; such conduct existed before [the alleged of-
fender] joined the Division”; UNDT Perelli judgment, para. 26, see above note 34.
158
UNAT Perelli judgment, paras. 66, 55, see above note 59, in footnote 10 referring to UNAT
judgment Molari, para. 2, see above note 101; UNAT, Aqel v. Commissioner-General of the
UNRWA, Judgment, 1 July 2010, 2010-UNAT-040, para. 27 (https://www.legal-tools.org/
doc/57k511/).

standable that the UNAT set aside the UNDT’s judgment supporting sum-
mary dismissal of Perelli. On the other hand, this director was neither fully
ignorant nor just indifferent to the sexually charged atmosphere in the
workplace directed. Rather, the director appeared to have at least ‘played
along’, possibly even actively contributed to the sexually charged atmos-
phere: the investigation panel’s report revealed that
[m]any referred to [Perelli’s] use of crude language, sexual
jokes, references and innuendo about [the director’s] sex life,
as well as inquiries and references to staff’s sexual habits, of-
ten in front of others. None of the staff had directly com-
plained about these matters to [Perelli], although some had in-
dicated to [Perelli] that they felt uncomfortable in these situa-
tions. 159
So the staff at least mentioned to Perelli that they felt ‘uncomforta-
ble’ about the atmosphere. There was no higher person to whom complaints
could have been addressed within this division, as Perelli assumed the
highest post.
This raises two questions: how did Perelli use her own position as
head of department to ‘act as role model by upholding the highest stand-
ards of conduct’? And, did Perelli indeed discharge the superior’s ‘duty to
take all appropriate measures to promote a harmonious work environment,
free of intimidation, hostility, offence and any form of prohibited conduct’
pursuant to section 3.2 of 2008 UN Administrative Instruction? The UNDT
suggests that Perelli did not, because the outcome of the investigation into
the allegations revealed
[…] it was more likely than not that there was at least one in-
stance of physical contact with Mr A, a […] staff member. The
contact was non-consensual. […]. [I]t was supported by ‘cred-
ible corroborating testimony [by two staff members] and less
than categorical denial by [Perelli].’ This inappropriate physi-
cal contact was described as [Perelli] leaning over Mr A while
he was sitting at his computer and touching his body with her
breasts. 160
The balance of probability standard (‘more likely than not’) is too
low to form a basis for summary dismissal of Perelli. Dismissals can be
based only on the standard of ‘clear and convincing’ evidence. However,
159
UNDT Perelli judgment, para. 26, see above note 34 (emphasis added).
160
UNDT Perelli judgment, para. 54, see above note 34.

the Perelli case is not only about the question of the legality of her sum-
mary dismissal, but also about how the UN regulations for superiors func-
tion in practice regarding the prohibition of sexual harassment. To assess
whether Perelli satisfied the obligations the 2008 UN Administrative In-
struction created for heads of divisions, the balance of probability standard
is enough. Two corroborating statements existed about this incidence which,
together, suggest that Perelli neither acted as a role model nor ensured “the
highest standards of conduct” as section 3.2 of the 2008 UN Administrative
Instruction required of managers and superiors. Furthermore, Perelli was
no ordinary manager or superior, but was, as the head of division, above
this level and thus expected to “hold all managers and other supervisory
staff accountable for compliance” with the 2008 UN Administrative In-
struction. 161 The alleged and corroborated incident renders it nearly impos-
sible that Perelli could have performed the role of head of office as envis-
aged by section 3.3 of the 2008 UN Administrative Instruction.
Nevertheless, the UNAT was correct in pointing out that Perelli’s
constructive knowledge of other allegations of sexual harassment by sub-
ordinates in her department had not been proven to the ‘clear and convinc-
ing’ standard required. However, the signal sent to the affected individuals
in Perelli’s unit was at least irritating, because the UNAT not only reversed
the UNDT’s judgment which had upheld the UN Administration’s dismis-
sal, but also “order[ed] Ms Perelli’s reinstatement or, if the Administration
so chooses, the award to her of two years’ net base salary”. 162
14.6. Conclusion
The efforts within the UN to ban, investigate, and adjudicate cases of sexu-
al harassment are decades-long and ongoing. In comparison to the US, the
UN commenced these belated efforts in 1992; but since then, it persistently
pursues its approach of ‘zero-tolerance’ 163 regarding such conduct.
Since 2018, the UN created a system-wide database in which it regis-
ters offenders who have engaged in sexual harassment to avoid rehiring
them. 164 A mechanism for UN system-wide collection and analysis of data
161
162
UNAT Perelli judgment, para. 70, see above note 59.
163
CEB Second deliberations 2018, para. 53 (a), see above note 63.
164
Ibid., para. 52(b), see above note 63; CEB First deliberations 2018, para. 48 and Annex I,

has been set up. 165 The most senior heads of the organisation have pledged
to strengthen the UN’s capacity to investigate 166 sexual harassment to im-
prove the quality of investigations of sexual harassment including, but not
limited to, through specific training and selection suitable staff. Apart from
boosting psychological and other support for the direct targets of sexual
harassment, the UN also makes efforts to address the witnesses of sexual
harassment and enhance the protection of whistle-blowers. 167
165
CEB Second deliberations 2018, para. 52(c), see above note 63.
166
Ibid., para. 52(e).
167
CEB First deliberations 2018, Annex 1, p. 17, see above note 63; Eileen A. Cronin and
Aicha Afifi, Review of whistle-blower policies and practices in United Nations system or-
ganizations, 2018, JIU/Rep/2018/4, paras. 112, 156; UN News, “Secretary-General Guterres
approves updated UN whistleblower protection policy”, 23 January 2017 (available on its
web site).

15
______
Integrity and the Work of

the European Ombudsman
Marta Hirsch-Ziembinska and Vieri Biondi *
15.1. Introduction
The principle of integrity has a twofold importance for Ombudsman insti-
tutions. It is, at once, a precondition for their functioning and the goal that
many of their inquiries are aimed at achieving. The scope of this chapter is
to describe the role that the principle of integrity plays in the work and the
functioning of the European Ombudsman.
The chapter will describe how the principle of integrity is an integral
part of the right to good administration established in Article 41 of the Eu-
ropean Charter of Fundamental Rights 1 and how the European Ombuds-
man has addressed it in practice, from which lessons for other international
justice institutions may be drawn. The work of the European Ombudsman
that will be presented in this chapter shows how a direct relationship exists
between integrity and transparency and how improving the transparency of
public institutions directly improves their integrity.
15.2. Ombudsmen Institutions and the Principle of Integrity
The first Ombudsman institution originated in Sweden in 1809 following
the deposition of King Gustav IV Adolf. The legislator set up a body
(Riksdagens Ombudsmän) to allow the Parliament (the ‘Riksdag’) to exer-
cise a certain degree of control over the executive power. However, it is
*
Marta Hirsch-Ziembinska is the Principal Adviser of the European Ombudsman, formerly
Head of Complaints and Inquiries Unit and ICT. Vieri Biondi works as case handler at the
European Ombudsman. The views and opinions expressed in this chapter are those of the
authors and do not necessarily reflect the official policy or position of the European Om-
budsman.
1
Charter of Fundamental Rights of the European Union, 7 June 2016, 2016/C 202/02 (https://
www.legal-tools.org/doc/j00z87/).

only in the second half of the twentieth century that Ombudsman institu-
tions spread in most European countries. 2
The role and structure of Ombudsman institutions may vary from
country to country. However, certain goals are common to all of them, par-
ticularly ensuring and promoting the principle of integrity in the public sec-
tor. The importance that Ombudsmen have in ensuring integrity in public
administrations is also recognized in a working paper of the Organisation
for Economic Co-operation and Development (‘OECD’). 3
However, Ombudsman institutions have to deal with the principle of
integrity not only in the framework of their inquiries; it is of the utmost
importance for Ombudsmen to ensure the integrity of their own institutions
before engaging in their core activities. This is due to the nature of Om-
budsman institutions, which do not have the power to issue binding deci-
sions. Ombudsmen rely on their moral authority to have their recommenda-
tions accepted and their suggestions followed by the institutions that are the
object of their investigations. The authority of Ombudsmen is not inherent
to these institutions; it is directly linked to the moral authority of the office-
holders. For this reason, Ombudsmen need to maintain their impartiality
and independence, and to conform their actions to the highest ethical
standards to be able to ensure the effective functioning of their institution
and their credibility when addressing the shortcomings of other bodies.
This is why Ombudsmen, although usually appointed by a political body,
tend to be very cautious in trying not to politicize their institutions. An
Ombudsman perceived as politicized would lose moral authority over other
institutions and would simply become one of the many actors on the politi-
cal level.
15.3. The European Ombudsman
The European Ombudsman was established in 1992, at the same time as
European citizenship, with the Maastricht Treaty 4 to act as a bridge be-
tween the European Union (‘EU’) and its citizens. The first European Om-
2
Nicholas Copeland, “National Ombudsmen in the EU”, EPRS Library Briefing, 23 Septem-
ber 2010 (available on its web site).
3
Organisation for Economic Co-operation and Development (‘OECD’), “The Role of Om-
budsman Institutions in Open Government”, in OECD Working Paper on Public Govern-
ance, 2018, p. 12.
4
Treaty on European Union, 7 February 1992, 92/C 191/01, Article 138e (https://www.legal-
tools.org/doc/806147/).

15. Integrity and the Work of the European Ombudsman
budsman, Jacob Söderman, was elected by the European Parliament in July

1995.
The European Ombudsman was created as an independent office to
which citizens or businesses can submit complaints against institutions,
bodies and agencies of the Union when they are faced with instances of
poor administration. The role of the European Ombudsman is to safeguard
the citizens’ right to good administration, which is an open-ended principle
enshrined in the EU Charter of Fundamental Rights. The mission of the
European Ombudsman is to uncover instances of maladministration and its
role reflects that of national Ombudsmen to whom citizens can turn to
complain about the administration of their Member States. Upon request of
the European Parliament, the first Ombudsman elaborated a definition of
maladministration, which is still relevant today. After having requested na-
tional Ombudsmen to inform him of the meaning given to the concept of
maladministration in their own countries, Söderman concluded that “mal-
administration occurs when a public body fails to act in accordance with a
rule or principle which is binding upon it”. 5
Today, the rules governing the work of the European Ombudsman
can be found in Article 228 of the Treaty on the Functioning of the Europe-
an Union 6 and the Statute of the European Ombudsman. 7 It is clear that the
powers of the European Ombudsman draw inspiration from those of na-
tional Ombudsmen. The European Ombudsman is not limited to acting up-
on complaints received, but can also be proactive and launch inquiries at
his or her own initiative. In this way, the Ombudsman plays an educational
role aimed at improving the administrative standards of a particular Euro-
pean institution, body or agency without having to rely on a formal com-
plaint.
Under the guidance of Söderman and on a proposal of Roy Perry,
Member of the European Parliament, the European Ombudsman’s Office
developed the European Code of Good Administrative Behaviour (herein-
5
European Ombudsman, Annual Report for 1997, 20 April 1998 (https://www.legal-tools.org/
doc/zu9e1m/).
6
Consolidated version of the Treaty on the Functioning of the European Union, 7 June 2016,
2016/C 202/01 (https://www.legal-tools.org/doc/15b8be/).
7
Decision of the European Parliament amending Decision 94/262/ECSC, EC, Euratom on the
regulations and general conditions governing the performance of the Ombudsman's duties,
18 June 2008, 2008/587/EC, Euratom (https://www.legal-tools.org/doc/rkj24h/).

after the ‘Code’), 8 which was approved by the European Parliament by a

resolution in 2001. 9 The Code is intended to provide a practical explanation
of what the right to good administration means in practice. 10 As the second
Ombudsman, Nikiforos Diamanduros, noted, the Code has a dual function:
while it serves the Ombudsman when assessing whether an institution
committed maladministration, it also works as a guide for civil servants by
helping them to behave according to the highest ethical standards. 11
By reading the Code, it is possible to understand how the principle of
integrity permeates the work of the European Ombudsman. First, ‘integrity’
is one of the five ‘public service principles’ established by Diamanduros,
which are now an integral part of the Code and which can be considered as
the foundation of the Code’s detailed provisions. 12 In addition, several of
the Code’s articles, such as Article 8 about “impartiality and independence”
and Article 11 concerning “fairness” are direct expressions of the applica-
tion of the principle of integrity into practice.
As briefly discussed above, the effective functioning of Ombudsman
institutions is directly linked to the moral authority of the office-holder.
This clearly applies also to the European Ombudsman. In 2015, the current
Ombudsman, Emily O’Reilly, took a significant step to increase the trans-
parency of her role and, consequently, the image of integrity of the Europe-
an Ombudsman’s Office. O’Reilly introduced an ad hoc Code of Conduct
to clarify the Ombudsman’s expected conduct and obligations and to pro-
mote high ethical standards of conduct, in line with the public service prin-
ciples. 13 The Code of Conduct addresses several practical issues such as
“financial interests, assets and declaration of interests”, “outside activities”
and “gifts”, also providing instructions on how to best handle these situa-
tions. This Code of Conduct is a clear example of how a controlling body
such as the European Ombudsman aims at applying the highest administra-
8
European Ombudsman, The European Code of Good Administrative Behaviour, 2015 (the
‘Code’) (https://www.legal-tools.org/doc/uut88i/).
9
European Parliament resolution on the European Ombudsman’s Special Report to the Euro-
pean Parliament following the own-initiative inquiry into the existence and the public acces-
sibility, in the different Community institutions and bodies, of a Code of Good Administra-
tive Behaviour, 6 September 2001, C5-0438/2000 - 2000/2212 (COS), pp. 331–336 (https://
www.legal-tools.org/doc/iznb55/).
10
Ibid., p. 4.
11
European Ombudsman, The European Code of Good Administrative Behaviour, 2005, p. 4.
12
The Code, p. 8–10, see above note 8.
13
European Ombudsman, “Code of Conduct for the European Ombudsman”, 2015.

tive standards internally in order to be in the position to be credible when

criticizing the behaviour of other institutions.
15.4. Fostering the Integrity of EU Administration
Since the establishment of the European Ombudsman, ensuring the integri-
ty of civil servants’ behaviour and promoting ethical standards have been a
priority. This is because ensuring integrity is essential to safeguarding citi-
zens’ trust in the Union. Indeed, it is the trust of the citizens that ensures
the legitimacy of the Union, which would otherwise be just a supranational
organization distant from those whom it represents. Through its inquiries,
the European Ombudsman called upon institutions, bodies and agencies of
the Union to elaborate codes of conduct and to develop guidance and in-
structions for their staff aimed at explaining how to ensure high ethical
standards in practice. The provision of guidance to staff, which is of the
utmost importance in any public institution, assumes a crucial role in the
reality of the Union. Civil servants working for the Union come from dif-
ferent backgrounds and realities, and do not necessarily share the same un-
derstanding of what behaviour is the most appropriate in a certain situation.
As they might not have uniform ethical standards, they need clarification
and guidance about what is expected from them.
As this section will show, the current European Ombudsman has
been very active in trying to make the work of the European institutions
more transparent and more accountable to the citizens. Actions carried out
in this area do not only allow citizens to have a clear view of what happens
at the European level, but they also directly benefit the integrity of the in-
stitutions and their staff. A transparent environment has a crucial role in
promoting ethical behaviour and in ensuring compliance with the principle
of integrity. Individuals who know that their actions might be made public
are discouraged from engaging in unethical activities. The same reasoning
can be applied to institutions. Where institutions are fully transparent, the
public and the media can act as watchdog and help uncover unethical be-
haviour. Promoting a transparent institutional environment has a double
effect. For one, it encourages civil servants to follow high ethical standards;
further, it allows the public to supervise the action of the institution and to
denounce unethical behaviour. Thus, it could be argued that in a transparent
environment, the principle of integrity is self-enforced.
The link between transparency and integrity is evident in the Europe-
an Ombudsman’s inquiries that will be analysed in this section. All inquir-

ies addressed the principle of integrity from the point of view of a conflict
of interest, as defined by the OECD, 14 and keeping in mind the distinction
between an apparent, potential and actual conflict of interest. 15
15.4.1. The So-Called Revolving Doors Phenomenon
The expression ‘revolving doors’ refers to the situation of EU civil servants
who leave the Union for a job in the private sector and of people joining
the Union from the private sector. While it is clearly legitimate for profes-
sionals working in the private or in the public sector to change their jobs,
the above situations present certain risks that the institutions have to keep
in mind when dealing with them.
In the case of former EU civil servants who move to the private sec-
tor, the risk is that they may use confidential information obtained while
working for the EU in their new positions. In addition, there is a concrete
risk that these individuals might take advantage of their contacts within EU
institutions to lobby, directly or indirectly, their former colleagues. When
workers join the Union from the private sector, the risk is that a conflict of
interest may arise in case they have to work on files which relate to their
previous employment.
In addition to the risks described above, the public might perceive
this movement of high-level civil servants from the Union to the private
sector as unethical, regardless of the behaviour of the individuals con-
cerned. Thus, in order to safeguard the public trust in the Union, it is of the
utmost importance to ensure that the procedures in place are effective and
that they are strictly followed.
The European Ombudsman, while always being conscious of the
fundamental right to work, 16 follows revolving doors situations very close-
ly, especially when they concern senior high-level staff of the EU.
In September 2016, the European Ombudsman took a decision on
two complaints submitted by a number of non-governmental organizations
concerning the European Commission’s handling of the revolving doors
phenomenon. 17 In the context of her inquiry, the Ombudsman issued rec-
14
OECD, Bribery in Public Procurement: Methods, Actors and Counter-Measures, OECD
Publishing, 2007, p. 33.
15
Code of Conduct for the European Ombudsman, see above note 13.
16
Charter of Fundamental Rights of the European Union, Article 15, see above note 1.
17
European Ombudsman, Decision of the European Ombudsman closing the inquiry based on
complaints 2077/2012/TN and 1853/2013/TN concerning the European Commission’s han-

ommendations and provided guidelines for the Commission to ensure that

all its decisions in this area are correct, well-reasoned and well-documented,
and that the decision-making process is transparent. 18 The Ombudsman
closed her inquiry acknowledging the steps forward made by the Commis-
sion and making four suggestions for improvement, on which she then fol-
lowed up with an own-initiative strategic inquiry in 2017. This inquiry
moved from the assumption that the Union can benefit from recruiting staff
members with experience in the private sector and that for former civil
servants the restriction to the right to work in the private sector, as it con-
cerns a restriction of a fundamental right, must be necessary and propor-
tionate. The Ombudsman found that, since the closure of her previous in-
quiry, the Commission had improved the technical handling of the revolv-
ing doors phenomenon. 19 Nevertheless, she identified certain areas that
could be further improved. In particular, the Ombudsman suggested to the
Commission to take a more robust approach to the issue with regard to sen-
ior officials and encouraged the Commission to also consider the option of
forbidding the new activity when it could conflict with the legitimate inter-
ests of the European Commission. The Ombudsman also called on the
Commission to adopt a more ambitious approach to the transparency of
potential lobbying or advocacy bans issued in the context of approving the
transfer of senior staff to the private sector. She suggested the Commission
to publish these bans directly on the Transparency Register under the en-
tries of the former officials’ new employers. The Ombudsman also made
several detailed suggestions for improvement to the Commission.
In parallel to these inquiries on the general functioning of the system,
the Ombudsman also dealt with individual revolving doors situations. The
best known of these inquiries is the one concerning the Commission’s han-
dling of post-mandate employment of the former President of the Commis-
sion, José Barroso. The Ombudsman found that the Commission’s failure
to take a specific decision on Mr. Barroso’s situation constituted maladmin-
istration and recommended the Commission to refer the case back to the
dling of the ‘revolving doors’ phenomenon, 9 September 2016 (https://www.legal-tools.org/

doc/oacxg9/).
18
Draft recommendation of the European Ombudsman in the inquiry based on complaints
2077/2012/TN and 1853/2013/TN against the European Commission, 22 September 2014
(https://www.legal-tools.org/doc/y02w2c/).
19
European Ombudsman, Decision of the European Ombudsman in her strategic inquiry
OI/3/2017/NF on how the European Commission manages ‘revolving doors’ situations of its
staff members, 28 February 2019 (https://www.legal-tools.org/doc/qy7qjc/).

Ethics Committee and to evaluate the opportunity of imposing a lobbying

ban on Mr. Barroso for a certain number of years. 20 Even if the Commis-
sion did not accept the Ombudsman’s recommendation in its immediate
reply, the Ombudsman’s inquiries led to the adoption of a Code of Conduct
for Commissioners in 2018. This code extends the existing lobbying cool-
ing-off period, from eighteen months to two years for former Commission-
ers and to three years for the Commission’s President. 21
15.4.2. The Transparency of the Expert Groups Advising the
European Commission
The ‘expert groups’ are consultative bodies, which provide the Commission
with high-level expertise and advice in a given policy area. The groups are
composed of public and/or private sector members and they meet more
than once. 22 Overall, there are over 800 expert groups, which are divided
between permanent and temporary ones and can be either formal or infor-
mal. The formal groups are established by a decision of the Commission,
while the informal ones are set up by individual Commission departments
with the agreement of the relevant Commissioner and Vice-President and
of the Secretariat-General of the Commission.
As the expert groups play a crucial role in advising the European
Commission, they also have a clear part in indirectly shaping EU policy.
On many occasions, the European Ombudsman expressed her view that
promoting the transparency and the integrity of these groups is crucial to
ensure the accountability of the institutions and the legislative process of
the EU. 23
20
Recommendations of the European Ombudsman in the joint inquiry into complaint
194/2017/EA, 334/2017/EA, and 543/2017/EA on the European Commission’s handling of
post-mandate employment of former Commissioners, a former Commission President and
the role of its ‘Ethics Committee’, 20 July 2018 (https://www.legal-tools.org/doc/eu1t29/).
21
European Union, Commission Decision of 31 January 2018 on a Code of Conduct for the
Members of the European Commission, 31 January 2018, Article 11 (https://www.legal-
tools.org/doc/dwjlw0/).
22
European Commission, Decision of 30 May 2016 establishing horizontal rules on the crea-
tion and operation of Commission expert groups, 30 May 2016, C (2016) 3301 final (https://
www.legal-tools.org/doc/fhziyq/); European Commission, Communication to the Commis-
sion Framework for Commission Expert Groups: Horizontal Rules and Public Register, 30
May 2016, C (2016) 3300 final (https://www.legal-tools.org/doc/01v7ek/).
23
Emily O’Reilly, Introductory Address for a dialogue with the Civil Society Europe Annual
General Assembly, Brussels, 26 April 2018.

The issue of integrity was submitted to the European Ombudsman

for the first time in 2010. The Ombudsman received a complaint concern-
ing the functioning and the transparency of the expert groups. The Om-
budsman’s inquiry led to a friendly solution being proposed to the Com-
mission. 24 The Ombudsman asked the Commission to define criteria for
categorizing the different entities represented in the groups and to ensure
that all the groups and all the experts are correctly registered in the Register.
The Ombudsman added that the Register should provide a sufficiently de-
tailed account of the minutes and of the reports of the groups’ meetings.
The Ombudsman also proposed to the Commission to consider ensuring a
balanced representation of all areas of expertise and interest in the expert
groups. The inquiry was closed with the conclusion that the Commission
had accepted the Ombudsman’s friendly solution proposal. 25
In 2014, the European Ombudsman decided to open an own-
initiative strategic inquiry to follow up on her previous findings and to
monitor the transparency and the composition of the expert groups. After
having carried out a public consultation on the matter, 26 the Ombudsman
made two recommendations to the Commission concerning the content of
the published minutes of the experts’ meetings and the transparency of the
groups’ deliberations. 27 The Ombudsman also made a number of sugges-
tions to the Commission aimed in particular at improving the composition
of the groups, the synergies between the expert groups register and the
Transparency Register, the calls for applications in this area, and the con-
flict of interest policy for individual experts. The Ombudsman found that
24
An overview of the Ombudsman’s solution proposal can be found in the Decision of the
European Ombudsman closing her inquiry into complaint 1682/2010/(ANA)BEH against
the European Commission, 19 December 2013, para. 144 (https://www.legal-tools.org/doc/
gx5bbj/).
25
Ibid.
26
European Ombudsman, “European Ombudsman launches public consultation concerning the
composition of European Commission expert groups”, 14 May 2014 (available on European
Ombudsman’s web site).
27
European Ombudsman, Recommendation of the European Ombudsman in her strategic
inquiry OI/6/2014/NF concerning the composition of Commission expert groups, 29 January
2016 (https://www.legal-tools.org/doc/uxi25m/).

the Commission had reformed the expert groups system and closed the in-
quiry considering that its purpose had been achieved. 28
15.4.3. Lobbying
Lobbying is an extremely delicate topic as the public might perceive the
fact that civil servants meet with interest representatives as inappropriate.
Citizens might thus question the integrity of the civil servants involved in
these meetings and consequently that of the institution that they represent.
At the same time, lobbying is an essential tool of our democracies, as seek-
ing the views of interest representatives allows policy-makers to receive
precious input, allowing them to better understand the practical conse-
quences of their decisions.
Lobbying activities are common and widespread in the Brussels’ re-
ality. The European Ombudsman has consistently maintained that transpar-
ent and well-regulated lobbying is an activity carried out in the public in-
terest, as it allows the EU administration to be informed of the global im-
pact of its proposed policies. 29 On the contrary, non-transparent lobbying is
a dangerous activity which might jeopardize the public trust in the Europe-
an Union’s institutions and should thus be avoided. Hence, it is evident that
it is of the utmost importance that civil servants behave in accordance with
the highest ethical standards when meeting with interest representatives.
In 2011, the European Commission and the Parliament set up the
Transparency Register to ensure public oversight on the activities of inter-
est representatives who meet with EU civil servants. While the Registry is
already a very advanced model, certain of its aspects would need further
improvement. In the framework of a public consultation launched by the
European Commission in 2016, the Ombudsman opened a ‘strategic initia-
tive’ to contribute to the debate. As a result, the Ombudsman made nine
suggestions to the Commission on how to further improve the Transparen-
cy Registry. 30 These suggestions concerned different issues such as making
the Registry common to all institutions and agencies, including information
28
European Ombudsman, Decision of the European Ombudsman in her strategic inquiry
OI/6/2014/NF concerning the composition and transparency of European Commission ex-
pert groups, 14 November 2017 (https://www.legal-tools.org/doc/6wn5vz/).
29
Emily O’Reilly, Address to Transparency International/EPACA conference, Brussels, 13
November 2019 (‘Introductory Speech’).
30
Emily O'Reilly, “Efforts to improve the EU Transparency Register”, 25 May 2016 (available
on European Ombudsman’s web site).

on the source of funding of interest representatives, introducing suspension

from the Registry for organizations which do not respect the rules applica-
ble to revolving doors situations, and proactive transparency in relation to
meetings with tobacco lobbyists. The Ombudsman was overall satisfied
with the steps taken to improve transparency in this area. However, the
Transparency Register has not yet been made applicable to all EU law-
making bodies and, especially, to the Council of the European Union. This
is a significant lack in the European effort of ensuring fully transparent and
ethical lobbying and the Ombudsman has been consistently calling for the
extension of the scope of application of the Register. 31
In the context of this strategic initiative, the European Ombudsman
also published a list of Dos and Don’ts meant as a guide for civil servants
interacting with interest representatives. 32 The list places great importance
on the need to meet with lobbyists registered in the Transparency Register,
to avoid conflict of interest and to keep transparent records of any meeting.
This tool has the merit of being extremely short and practical, and it can
thus be easily circulated among all EU staff to inform them of how they
should behave in this sensitive area.
15.5. Conclusion
As Thomas Jefferson said already in the early nineteenth century, “when a
man assumes a public trust, he should consider himself as public proper-
ty”. 33 It is with this spirit and keeping in mind that they are serving the
public good that civil servants should approach their daily work.
When acting in the public interest, individuals should always respect
the law applicable to their actions. However, while the legality of an action
is clearly a precondition for its integrity, merely acting within the law is not
enough to ensure the respect of such principle. Civil servants are expected
to adopt more stringent standards than those set out by the law and to fol-
low the highest ethical principles.
As it has been described in this chapter, the European Ombudsman
places the respect of the principle of integrity at the very basis of the con-
cept of good administration. Hence, in case of a breach of the principle of
31
Introductory Speech, see above note 29.
32
European Ombudsman, “Practical recommendations for public officials’ interaction with
interest representatives”, 24 May 2017 (available on European Ombudsman’s web site).
33
Thomas Jefferson, personal correspondence with Baron von Humboldt, 1807, B.L. Rayner,
“Life of Jefferson (1834)”, in Oxford Essential Quotations, Oxford University Press, 2017.

integrity, the Ombudsman will find an instance of maladministration and

will issue a recommendation aimed at resolving the issue and at avoiding
that a similar situation might happen again in the future. However, the Om-
budsman’s role in ensuring the integrity of EU institutions is not limited to
being reactive. As the inquiries described in this chapter show, also when
investigating issues that are not immediately related to integrity, the Om-
budsman can indirectly safeguard the respect of such a principle.
However, it is essential to be aware that soft and hard laws (even
when supported by strong and reliable accountability mechanisms) are not
enough to ensure the full integrity of civil service. Civil service has a hu-
man dimension, which cannot be forgotten: it is mainly about the people
and, regardless of how clear the instructions and how stringent the obliga-
tions can be, integrity can be ensured only if the institutions are made up of
honest individuals who are willing to follow them.

16
______
On Whistle-Blowing and
Inquiry in Public Institutions
Jan Fougner *
16.1. Introduction
Given that ensuring integrity in international justice is the desired end, the
predominant questions are which means are suitable to achieve such an end
and how must these institutions apply such means.
International justice institutions are ultimately defined by persons –
judges, prosecutors, administrative employees, bureaucrats, management et
al. – and the institutions must, therefore, establish a framework within
which these persons can avoid misconduct and pursue integrity. Further, in
the event of non-compliance within such a framework, impartial inquiries
should be considered a means through which one may hold the perpetrator
of misconduct responsible and thus re-establish integrity.
Whereas whistle-blowing may be conducive to eradicating miscon-
duct by introducing a culture of transparency, and freedom of expression
and from oppression, impartial inquiries may impede concealment, place
responsibility, and suggest effective measures to prevent future misconduct.
These two mechanisms, namely whistle-blowing and inquiries, represent
proactive and reactive approaches, symbiotically, inculcating the virtue of
integrity in an institution.
Both nationally and internationally, great efforts have been made to
ensure transparency and disclosure in order to drive us towards integrity.
Several countries have introduced new legislation on whistle-blowing, 1 and
*
Jan Fougner is Partner in the leading Norwegian law firm Wiersholm (whose employment
practice he leads), and Professor at BI Norwegian Business School. He has led a number of
high-profile inquiries involving problems of integrity (including in the police) and is an ex-
pert on whistle-blowing. He holds the Cand. jur. from the University of Oslo and a doctoral
degree from the University of Aarhus.
1
France, Loi relative à la transparence, à la lutte contre la corruption et à la modernisation de
la vie économique, 9 December 2016 (‘Sapin II’); Norway, Lov om arbeidsmiljø, arbeidstid
og stillingsvern m.v. (arbeidsmiljøloven) (Act relating to working environment, working
hours and employment protection, etc. (Working Environment Act)), 17 June 2005, Chapter
2A; UK Financial Conduct Authority, Accountability and Whistleblowing Instrument 2015,

surely, the EU Directive on this matter is a sign of progress. 2 For the same
reason, inquiries have been undertaken, for instance concerning the gov-
ernments’ implication in Iraq and Libya, 3 the Mueller investigation in the
United States (‘US’), the Sarkozy affair in France, 4 and the inquiries into
the Khashoggi affair and the North-Korean missile programme and facili-
ties. 5
It is conspicuous that the legislation on whistle-blowing and inquiries
do not pinpoint the judiciary as such. Even though some inquiries, such as
‘kids for cash’ in the US, suggest a certain interest in questions regarding
justice and corruption, one might wonder whether we perceive the judicial
system as being less flawed by corruption than other institutions. One
might ask whether the judiciary is per se transparent and righteous without
the same need to implement measures to safeguard integrity.
There are those challenging such a viewpoint. As an example, the In-
ternational Criminal Court (‘ICC’) has been confronted with stark criticism
regarding immoral behaviour (from both the Helsinki Committee, Bolton
and representatives of Burundi and the Philippines). An Independent Ex-
pert Review submitted a comprehensive, critical report on 30 September
24 September 2015; and EU, Protection of persons reporting on breaches of Union law, 16
April 2019.
2
See Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October
2019 on the protection of persons who report breaches of Union law, PE/78/2019/REV/1.
3
The UK and Norway, respectively.
4
For instance, the Libya investigation in Norway is an example of this purpose of an investi-
gation. A few years ago, the Norwegian Parliament asked the executive branch to initiate an
investigation of the Norwegian military as well as civilian participation in operations in Lib-
ya in 2011. More specifically, the purpose was to draw lessons from the participation in Lib-
ya as to how to improve future participation in international operations.
As for the Chilcot report concerning the United Kingdom’s participation in an opposed
invasion and full‑scale occupation of the sovereign State of Iraq, it was also aimed at en-
lightening the public and elucidating an event rather than causing prosecutions. The Chilcot
report concluded that the there was no “imminent threat from Saddam Hussein” and that by
supporting the war, the UK was in fact “undermining the Security Council’s authority”.
There is yet another example of such investigations, which is even more prominent: the
Mueller investigation in the US, assessing potential Russian meddling during the 2016 pres-
idential election race between Donald Trump and Hillary Clinton.
5
Deirdre Shesgreen, “North Korea running at least 13 secret operating bases for ballistic mis-
sile program, new study shows”, in USA Today, 12 November 2018.

16. On Whistle-Blowing and Inquiry in Public Institutions
2020. 6 Concerning national judicial systems, we might mention that the

citizens of Peru or Venezuela, Burkina Faso, 7 France and recently the US 8
all seem to be opposed to the idea of an incorruptible and virtuous judiciary.
On the contrary, they seem to view the judicial system as transcendent,
lacking transparency. 9 In fact, there is evidence of misconduct and unethi-
cal behaviour in the judiciary, righteously giving rise to the question of
how to fight it.
Thus, the international justice institutions must, like all other public
institutions, implement appropriate mechanisms in order to combat corrup-
tion and violations of professional and ethical standards and consequently
preserve integrity.
16.2. Do Whistle-Blowing Procedures and Inquiries Constitute Means
to Guarantee Integrity?
Historically, white-collar crime and other similar misconduct have been
near impossible to expose because none of the perpetrators, the beneficiar-
ies, or the broad mass of people constituting the victims of such crimes
have an incentive to reveal it. 10 Furthermore, white-collar criminality pri-
marily constitutes a violation of trust 11 traditionally viewed as a less seri-
ous crime. 12 However, fraudulent practices and corruption do endanger
public welfare, stability and security. They undermine the institutions and
values of democracy and justice. The links between corruption and other
forms of crime, including organized and economic crime, are furthermore
not only costly, placing a greater tax burden on citizens, 13 but they create
6
See Independent Expert Review, Independent Expert Review of the International Criminal
Court and the Rome Statute System: Final Report, 30 September 2020 (https://www.legal-
7
RFI, “Burkina Faso: 37 magistrats épinglés pour des cas de corruption”, 9 July 2017.
8
The ‘Kids for cash’ scandal in Philadelphia and Brett Kavanaugh, who is now judge of the
Supreme Court.
9
Jacques Commaille, À quoi nous sert le droit ?, Gallimard, Paris, 2015, Introduction.
10
Edwin H. Sutherland, “White-Collar Criminality”, in American Sociological Review, 1940,
vol. 5, no. 1, pp. 1–12.
11
Donald J. Newman, “White-Collar Crime”, in Law and Contemporary Problems, 1958, vol.
23, no. 4, p. 738.
12
Sutherland, 1940, see above note 10.
13
“The History Of Whistleblowing in America”, in Whistleblowers International (available on
its web site).

an even more pronounced mistrust in the governmental body concerned. 14

Consequently, when public investigations conducted by police forces have
proven insufficient to combat such crimes, other measures must be em-
ployed.
The Organisation for Economic Co-operation and Development
(OECD) 15 and the United Nations (‘UN’) 16 view whistle-blowing and in-
quiries as effective measures to combat white-collar crime. The UN has
held that “public inquiries into major disasters and scandals have shown
that a workplace culture of silence in the face of malpractices can cost lives,
damage livelihoods, cause jobs to be lost and undermine public confidence
in major institutions”, 17 illustrating the importance of both creating an in-
stitutional culture of transparency in order to ensure integrity and to launch
public inquiries if integrity is compromised. The UN advocates for stronger
whistle-blowing protection, including prohibition and sanctions of retalia-
tion and clear reporting channels, both external and internal. 18 Several
countries have followed suit. Examples are the Norwegian Employment
Act, 19 the French law Sapin II, the United Kingdom’s law on Accountabil-
ity and Whistleblowing Instrument of 2015, 20 and the aforementioned EU
Directive of 2019. 21
14
United Nation Convention against Corruption, 31 October 2003, Preamble (‘UNCAC’)
(http://www.legal-tools.org/doc/7640fb/).
15
OECD, Study on Whistleblower Protection Frameworks, Compendium of Best Practices and
Guiding Principles for Legislation, 2011 (available on its web site).
16
UNCAC, see above note 14.
17
Natalie Christelis et al., in Petter Langseth (ed.), United Nations Handbook on Practical
Anti-Corruption Measures for Prosecutors and Investigators, UN Office on Drugs and
Crime, Vienna, September 2004, p. 75 (https://www.legal-tools.org/doc/zw3xvs/):
public inquiries into major disasters and scandals have shown that a workplace culture
of silence in the face of malpractices can cost hundreds of lives, damage thousands of
livelihoods, cause tens of thousands of jobs to be lost and undermine public confidence
in major institutions. In some cases, victims may be compensated but no one held ac-
countable for what has happened.
18
European Commission, “Whistleblower protection”, 23 April 2018.
19
Chapter 2A, see above note 1 (which is being revisited now).
20
Which established a robust regime of whistle-blower protections from unfair treatment that
went into effect in 2016, see above note 1.
21
Protection of persons reporting on breaches of Union law, see above note 1.

Today, whistle-blowing is primarily associated with the disclosure of

illegal, immoral or illegitimate practices by organization members. 22 Con-
versely, the concept of whistle-blowing dates back to the notion of qui tam
in seventh century England 23 and the term to the police officers who blew
their whistles in order to alert the public. 24 The origin of the concept and
the term emphasizes the importance of external actors as whistle-blowers
in order to combat weak internal control, the fact that no one questions dis-
loyal behaviour, or the dissimulation of misconduct. 25 Both internal proce-
dures and the embracement of external whistle-blowers are, at present,
some of the most important instruments to safeguard transparency, compli-
ance and anti-corruption through which integrity might be achieved.
While whistle-blowing discloses misconduct and ultimately aims at
creating a culture of openness, inquiries are non-trial examinations clarify-
ing the course of events and assessing whether human mistakes, omission
or maladministration have caused issues for which a person should be held
liable. Such inquiries may be internal or conducted by external parties, and
usually, one might be preferred to the other depending on the circumstances.
In general, external parties, whilst more expensive and usually more bur-
densome for the organization, tend to be impartial, and provide a fresh ap-
proach and inspire trust among the public and the media. As for external
whistle-blowers, this might be particularly necessary when the internal
control has proven insufficient or dissimulation of misconduct has taken
place.
22
Janet P. Near and Marcia P. Miceli, “Organizational Dissidence: The Case of Whistle-
blowing”, in Journal of Business Ethics, 1985, vol. 4, no. 1, p. 4: “the disclosure by organi-
zation members of illegal, immoral or illegitimate practices under the control of their em-
ployers, to persons or organizations that may be able to effect action”; cited in Varslingsut-
valget, in Departementenes sikkerhets- og serviceorganisasjon (ed.), Varsling – verdier og
vern: Varslingsutvalgets utredning om varsling i arbeidslivet, Oslo, 2018, NOU 2018:6.
23
The concept was described by the term qui tam, which became “synonymous with whistle-
blowers who sue corrupt companies on behalf of their government”, see “The History Of
Whistleblowing in America”, see above note 13.
24
Marion A. Hersh, “Whistleblowers – heroes or traitors?: Individual and collective responsi-
bility for ethical behaviour”, in Annual Reviews in Control, 2002, vol. 26, no. 2, p. 243; ref-
erence to Kent D. Strader, “Counterclaims against Whistleblowers: Should Counterclaims
against Qui Tam Plaintiffs Be Allowed in False Claims Act Cases”, in University of Cincin-
nati Law Review, 1993, vol. 62, p. 713 (1 Hersh (2002), p. 243 with further reference to
Strader (1993)).
25
Erling Grimstad, Granskning: ved mistanke om korrupsjon og andre former for økonomisk
kriminalitet i arbeidsforhold, Gyldendal juridisk, 2015, p. 21.

16.3. How May Such Means Effectively Achieve the End of Inculcating
the Virtue of Integrity in Justice Institutions?
The implementation of whistle-blowing procedures depends on the will-
ingness of the institution to ensure these. In Norway, different governmen-
tal departments apply such procedures, including internal and external re-
porting channels and procedures for successive investigations. 26 These may
be employed in international justice systems as well.
It may be more challenging to institute inquiries because the revela-
tion of the course of events, the finding of a causal link between a phenom-
enon and an action, as well as the provision of an analysis of a problem in
the institution might generate a feeling of being under attack. Generally,
one should not throw caution to the wind and initiate external inquiries for
all misconduct. An employee’s minor misconduct should principally be
investigated internally. Inquiries by external parties are expensive and bur-
densome for those implied, but indeed a more powerful tool when used
correctly.
If the misconduct is serious and committed by a superior, inquiries
by external experts will usually be more fitting. The superior will be dis-
qualified as partial and any direct subordinate in the same administration
must, based on the general notion on impartiality, 27 usually be considered
partial as well. Hence, if a superior has engaged in misconduct, all of the
subordinates are, in a legal context, partial and inquiries by external parties
seem like the most suitable approach.
Additionally, the psychological factor of feeling under attack must be
taken seriously. Gross misconduct committed by a superior will usually be
26
The Ministry of Foreign Affairs, Norway, and now the Ministries of Justice and of Customs
follow.
27
This notion derives from, among others, the International Covenant on Civil and Political
Rights, 16 December 1966, which in its Article 14(1) states that “all persons shall be equal
before the courts and tribunals”, and that “in the determination of any criminal charge
against him, or of his rights and obligations in a suit of law, everyone shall be entitled to a
fair and public hearing by a competent, independent and impartial tribunal established by
law” (emphasis added) (http://www.legal-tools.org/doc/2838f3/). The UN Human Rights
Committee has unambiguously held the same, as well as the African Charter on Human and
Peoples’ Rights, 21 October 1986, Article 7(1) (http://www.legal-tools.org/doc/f0db44/), and
the American Convention on Human Rights, 22 November 1969, Article 8(1) (http://
www.legal-tools.org/doc/1152cf/). Lastly, this is specified in Article 6(1) of the European
Convention on Human Rights, 4 November 1950 (http://www.legal-tools.org/doc/8267cb/),
as well as in the Rome Statute of the International Criminal Court, 17 July 1998, Article
36(3)(a) (http://www.legal-tools.org/doc/7b9af9/).

perceived as an attack on the organization as such, and thus on all employ-

ees who identify themselves with it. Regardless of the feeling of being un-
der attack, a subordinate rarely wants to harm the employer or the institu-
tion in which he or she works. Further, there might be established a link
between an external revelation of misconduct, which is evidence of low or
non-existent internal control, and the need for external experts to investi-
gate and assess the misconduct. In such events, the organization will be ill-
equipped or unable, to properly conduct the necessary investigations and
analysis. Moreover, if the issue at hand may be emblematic of an underly-
ing cultural problem, external and independent experts might ensure that
the inquiry is legitimate and independent, as well as perceived as such. For
an external and independent expert to conduct an independent inquiry, the
mandate needs to be delimited clearly and supported by the Board of Di-
rectors or the highest executive organ of the institution.
By virtue of the private investigation’s character – approaching that
of ordinary investigations (even though there is no prosecution following
from it) – it is important to secure the right to liberty and security, 28 the
right to fair proceedings, 29 respect regarding the presumption of innocence,
protection against self-incrimination 30 as well as the right and respect of
private and family life. 31 These principles are all enshrined, for example, in
the Norwegian code of conduct for private inquiries, 32 providing the inves-
tigator with a clear framework for its work, and might be worth looking at
when launching an inquiry.
Since information obtained through an investigation and set forth in a
report may be used in an upcoming public investigation, everyone implied,
particularly the parties to the inquiry, must receive legal advice and help.
The report concluded by the external experts may have judicial or factual
consequences for those subject to investigation, even though it is per se
extra-judicial. Sometimes, the publication of an investigative report might
even entail a greater burden on those implied due to ample media coverage
and exposure.
28
European Convention on Human Rights, Article 5, see above note 27.
29
Ibid., Article 6.
30
Ibid.
31
Ibid., Article 8. See also the International Covenant on Civil and Political rights.
32
Norway, Advokatforeningens retningslinjer for private granskninger, 4 March 2011, part 2,
sections 3.2, 5.1, 5.2, 6 and 6.3 (https://www.legal-tools.org/doc/kn9t3j/).

Recognizing that integrity is the ultimate end, the report should be

rightful and disclosed in its entirety. To ensure full transparency, no sum-
maries should be distributed. Following the release of a report, responsibil-
ity must be attributed and internal procedures revisited. For the re-
establishment of confidence, one must recognize that everyone makes mis-
takes, and admitting a mistake requires fortitude. Admitting wrong-doings
is a most dignifying act and does not, based on my experience, endanger a
position of power, but rather gives rise to authority.
With reference to the ICC, independent investigations in the event of
serious misconduct are key to safeguarding all stakeholders’ interests and
not undermining the court’s role as a guardian of justice. The report of the
Independent Expert Review is a comprehensive systemic review, but this is
not the same as an inquiry into specific allegations of individual wrong-
doing.
16.4. Closing Remarks
Both proactive and reactive measures, including whistle-blowing proce-
dures and inquiries, are appropriate in order to achieve integrity in interna-
tional justice institutions.
However, the virtue of integrity will not become a reality prior to our
choosing it. The responsibility of selecting and implementing mechanisms
appropriate to the end sought lays within the institution itself.
Having regard to the role of the judicial institutions – which entails a
great responsibility to ensure full transparency, to inspire confidence, and
embody integrity – such measures must be employed for three reasons.
First, in order to hold others accountable, one must not oneself fear ac-
countability. Second, in order to combat impunity, one must not expect im-
punity for oneself. Third, the judiciary is indivisible from law, meaning that
law constitutes both the framework in which it operates as well as the in-
strument by which it provides justice. The judiciary is thus an incarnation
of law, a protector of rights and freedoms given to the people, and it must
not violate these itself.
Especially for the ICC, maintaining integrity is of great importance
for both practical and moral reasons. It is effectively the only way to main-
tain support. The Court does not have its own police force, it is funded by
the States Parties, and dilutes sovereignty, based on the principle of com-
plementarity. It must therefore uphold a particularly high ethical standard
in order to preserve its members, funding and legitimacy. Morally, the

Court has a duty to fight abuse of power, corruption and misconduct be-
cause it is a guardian of freedom from harm against fundamental common
values. Remembering the Machiavellian maxim, whistle-blowing mecha-
nisms, as well as impartial and independent inquiries, may impede absolute
power and therefore hinder corruption, ultimately establishing, or re-
establishing, the virtue of integrity.

17
______
Private International Criminal

Investigations and Integrity
Alexander Heinze *
17.1. Introduction
Private investigators have always created a certain admiration and fascina-
tion. In fact, informed by famous writers such a Sir Arthur Conan Doyle, in
the eyes of their readers – and the public in general – private investigators
are the real heroes of crime novels, usually solving a case that eventually
brings fame not to themselves but to the police detective they are working
with. Thus, Inspector Lestrade has Sherlock Holmes and Leland Stot-
telmeyer has Adrian Monk. Not to forget all those private investigators who
generally assist the local police, such as Jane Marple and Hercule Poirot.
And then there are those who conduct ‘investigations’ in a broad sense,
even though it seems counter-intuitive to classify them as private investiga-
tors: Bruce Wayne aka Batman; John Shaft; the A-Team; Christian Wolff
aka “The Accountant”; Tintin, the young Belgian reporter; Mikael
Blomkvist, journalist and the main character in Stieg Larsson’s Millennium
series; and April O’Neil, anchor-woman for Channel 6 News in the 1987-
1996 animated Teenage Mutant Ninja Turtles series.
The appeal of private investigations has now reached the field of in-
ternational criminal justice. For instance, the work of the Commission for
International Justice and Accountability (‘CIJA’) has attracted some atten-
tion, also in connection with recent universal jurisdiction cases concerning
Syria. Of course, investigatory work done by private non-State agencies is
*
Alexander Heinze is an Assistant Professor of Law at the University of Göttingen, Germany.
He holds a Ph.D. in International Criminal Law (with honours), received his Master’s in In-
ternational and Comparative Law from Trinity College Dublin, Ireland, with distinction and
published various papers on topics such as international criminal law and procedure, media
law, comparative criminal law, human rights law and jurisprudence. His book International
Criminal Procedure and Disclosure (Duncker & Humblot, 2014) won three awards. He is a
member of the ILA’s Committee on Complementarity in ICL, co-editor of the German Law
Journal, book review editor of the Criminal Law Forum, and worked for the Appeals
Chamber of the ICC as a visiting professional. The author would like to thank the editors for
their valuable comments.

not novel as there are countless non-governmental organisations (‘NGOs’)

and inter-governmental organizations (‘IGOs’) who collect evidence to be
used before international(ised) criminal tribunals (‘ICTs’) or before a na-
tional court trying international crimes. Investigative staff at the Interna-
tional Criminal Court (‘ICC’) and other ICTs are dependent on the field-
work undertaken by human rights monitors as fact-finders, employed by
IGOs, NGOs, and, in some cases, by governmental agencies. 1 Especially,
personnel “not serving with a belligerent party” proved valuable to the in-
vestigative staff of ICTs and were sometimes later called to testify at trial. 2
Private investigations are indispensable at the international level, and pri-
vately funded international human rights organisations have been crucial to
hold perpetrators of international crimes accountable. 3
Considering the importance of private investigators for the admin-
istration of ICTs, the potential dangers of such cooperation easily take a
backseat in a car that is driven by the anti-impunity agenda. Prosecutors of
both national courts and ICTs become taciturn when confronted with illegal
1
See, for instance, ICC, Office of the Prosecutor, Nineteenth report of the Prosecutor of the
International Criminal Court to the United Nations Security Council pursuant to UNSCR
1970 (2011), 5 May 2020, para. 35 (https://www.legal-tools.org/doc/6z4snc/): “The Office
also benefits from assistance provided by a range of international and regional organisations,
civil society groups, and private individuals. As always, the Office invites submissions from
any group or individual in possession of credible and reliable information pertaining to the
alleged commission of Rome Statute crimes in Libya since 15 February 2011. The Office
regularly receives such submissions of information from a variety of sources”. See generally
Morten Bergsmo and William H. Wiley, “Human Rights Professionals and the Criminal In-
vestigation and Prosecution of Core International Crimes”, in Norwegian Centre for Human
Rights (ed.), Manual on Human Rights Monitoring – An Introduction for Human Rights
Field Officers, 2008, p. 1 (https://www.legal-tools.org/doc/8362d5/); Barry de Vries, “Could
International Fact-Finding Missions Possibly Render a Case Inadmissible for the ICC?: Re-
marks on the Ongoing Attempts to Include International Criminal Law in Fact-finding”, in
Journal of Conflict and Security Law, 2019, vol. 24, p. 600; Marina Aksenova, Morten
Bergsmo and Carsten Stahn, “Non-Criminal Justice Fact-Work in the Age of Accountability”,
in Morten Bergsmo and Carsten Stahn (eds.), Quality Control in Fact-Finding, second edi-
tion, TOAEP, Brussels, 2020, pp. 9–12. For an instructive overview of the practicalities of
NGO fact-finding see Wolfgang Kaleck and Carolijn Terwindt, “Non-Governmental Organi-
sation Fact-Work: Not Only a Technical Problem”, ibid., pp. 417 ff. Generally, about the co-
operation of international organisations and NGOs Wolfgang Graf Vitzthum, “Begriff und
Geltung des Völkerrechts”, in Wolfgang Graf Vitzthum and Alexander Proelß (eds.), Völker-
recht, 8th edition, De Gruyter, Berlin, 2019, mn. 19.
2
Bergsmo and Wiley, 2008, p. 12, see above note 1.
3
Beth Stephens, “Accountability for International Crimes: The Synergy between the Interna-
tional Criminal and Alternative Remedies”, in Wisconsin International Law Journal, 2003,
vol. 21, p. 527 (528).

17. Private International Criminal Investigations and Integrity
behaviour by their most important aids. At most, they refer to their supervi-
sion and the fact that all witness statements have to be repeated in front of
them anyway, let alone that evidence collected by private investigators is
merely used as lead evidence. Yet, once the cooperation between an ICT
and private individuals 4 in the collection of evidence becomes public,
which is usually the case when something went wrong, reality speaks a dif-
ferent language. In the Lubanga case before the ICC, the suspicion arose
that certain so-called intermediaries had bribed various persons to prepare
false evidence for alleged former child soldiers. In another instance, in the
same case, the Office of the Prosecutor (‘OTP’) was supposed to use cer-
tain material as lead evidence only, but did the opposite.
This chapter is about these instances; it is about illegal conduct of
private investigators; and it is eventually about the proposal of a compass
for private investigators.
The chapter is structured into four main sections. It starts with a
stocktaking endeavour, describing the occurrence of private investigations
in the former Yugoslavia and Rwanda, in Kosovo, Sierra Leone, Cambodia
and, especially, Syria (17.2.). Following a brief delineation of the ad-
vantages of private investigations (17.3.) and some terminological remarks
(17.4.), the focus turns to the main section on private investigations as a
matter of ethics and integrity (17.5.).
The chapter will demonstrate that the idea of the ‘integrity’ or ‘legit-
imacy’ of the trial as a distinctive kind of legal process can serve as an im-
portant, if not the only compass for private conduct in the collection of evi-
dence. Concretely, let us suppose a private investigator offers money to a
witness in return for information about a suspect and his or her criminal
activities. 5 After all, it has become public that the OTP of the Special Court
for Sierra Leone had an extensive practice of paying both informants and
4
I prefer the term ‘individual’ over ‘actor’, since the focus of this chapter is on private con-
duct. I use the term ‘actors’ to describe agents acting for or on behalf of certain institutions
and organisations. Individual actors – or individuals – have the ability to act reflexively but
in doing so “they are significantly constrained by the structures in which they operate” (Ne-
rida Chazal, The International Criminal Court and Global Social Control, Routledge Taylor
& Francis, Abingdon, 2016, p. 4).
5
Other examples, convened by Robertson for the context of interviews: leading questions,
“brainwashing” the witness, persuasion, the private investigator is a national of the State un-
der investigation, see Geoffrey Robertson, “Human Rights Fact-Finding: Some Legal and
Ethical Dilemmas”, in Morten Bergsmo and Carsten Stahn (eds.), Quality Control in Fact-
Finding, second edition, TOAEP, Brussels, 2020, pp. 491–507.

witnesses in return for information and statements. 6 The scenario is thus

real and can be transferred to the private level. Or even more extreme: a
person tasked with investigating tortures that witness to get the desired in-
formation. Does ‘integrity’ provide a guideline for this investigator to re-
frain from his or her activities?
The term ‘integrity’ will be approached as a semantic concept in the
first place, and only secondarily as a philosophical concept. It will unfold
in three perspectives: object, subject and context. Using these perspectives,
the analysis will focus on illegally obtained evidence. Integrity, as an ele-
ment and value in the different decisions about illegally obtained evidence
by private individuals, may lead to several consequences. For the sake of
better following the arguments, I will single out the example of the exclu-
sion of evidence as a consequence of a violation of the integrity element (in
whatever form). Exclusion is understood broadly, encompassing both the
exclusion of material per se and its nullity. 7 Rules regulating such an ex-
clusion may safeguard individual rights, protect the integrity of procedures,
achieve reliable fact-finding, and deter police misconduct. 8 Other conse-
quences will be described at the end of the chapter.
There are different investigatory contexts when private individuals
collect evidence that may eventually be used before an ICT: the inter-
investigatory context (international investigation – domestic investigation);
the intra-investigatory context (internal investigation by a private individu-
al); and the extra-investigatory context (collection of evidence by a private
individual outside any investigation). I will raise the question whether the
procedural regime, especially exclusionary rules, may be applicable in the-
se three contexts. The inter-investigatory context is the least problematic.
In the intra-investigatory context, there is an attribution of the private indi-
vidual to an organ of the ICT (usually, the OTP) that may occur rather
openly through the utilisation of the individual in the collection process,
that is, ab initio, or through an ex post-attribution, when the individual act-
ed in the interest of the organ. In the latter, a person acts independently of
6
In detail the eye-opening account of Wayne Jordash, “Insiders: The Special Court for Sierra
Leone’s Dirty Laundry”, Justiceinfo.net, 30 April 2020.
7
About the semantic difference between those two in more detail, albeit misleadingly de-
scribed as “linguistics”, Dimitrios Giannoulopoulos, Improperly Obtained Evidence in An-
glo-American and Continental Law, Hart, Oxford, 2019, pp. 6–7.
8
Sabine Gless and Laura Macula, “Exclusionary Rules – Is It Time For Change?”, in IUS
Gentium, 2019, vol. 74, p. 349 (350).

an ICT-organ and outside an investigation. It is the extra-investigatory con-

text that is the neuralgic point of exclusionary rules applied before ICTs.
What seems to be a rather simple question – do exclusionary rules apply in
this setting? – will unfold into an analysis that enters the depth of proce-
dural law theory. Through norm-theory (Dan-Cohen) and systems theory
(Luhmann and Teubner), combined with procedural theory (Packer), the
playing field of the rather wide-ranging controversy about the addressees
of procedural rules will be entered. I will render the common bipolar legis-
lator-addressee relationship fruitless, and approach the process as a system
instead.
Finally, integrity will be identified in the remedies of exclusion, a
stay of proceedings, integrity testing and integrity units.
17.2. The Occurrence of Private Investigations in International
Criminal Justice
17.2.1. Historical Observations
Both the International Criminal Tribunal for the former Yugoslavia (‘ICTY’)
and the International Criminal Tribunal for Rwanda (‘ICTR’) relied heavily
upon materials published by IGOs and NGOs. 9 They have provided the
prosecutors’ offices with ‘background information’ on the commission of
international crimes, and on the willingness of States to investigate or pros-
ecute alleged crimes. 10 They have also shifted the focus from state respon-
sibility to individual criminal responsibility, which had a considerable im-
pact on the way evidence was collected and eventually handled. 11
17.2.1.1. The Former Yugoslavia and Rwanda
More concretely, Human Rights Watch (‘HRW’) placed a ‘permanent rep-
resentative’ in the former Yugoslavia during the conflict, 12 and reported
9
10
Mark S. Ellis, “The contribution of non-governmental organizations to the creation of inter-
national criminal tribunals”, in Bartram S. Brown (ed.), Research Handbook on Internation-
al Criminal Law, Edward Elgar, Cheltenham, 2011, p. 143 (156).
11
De Vries, 2019, p. 602, see above note 1.
12
Ellis, 2011, p. 143, see above note 10. See also William Korey, NGOs and the Universal
Declaration of Human Rights, Palgrave, New York, 1998, p. 320: “[HRW] had at least one
or more staffers present in Bosnia and other parts of Former Yugoslavia throughout all of
1992 and 1993. These virtually full-time representatives of the New York-based NGO had
maintained contacts with local human rights activists and a variety of sources within the var-
ious levels of governments and media in the area”.

human rights abuses in the region by conducting investigations and inter-

viewing witnesses. 13 In 1992, HRW published “War Crimes in Bosnia-
Herzegovina,” its first report on violations of the laws of war 14 and a “call
for action, for accountability”, 15 followed by a second report that was used
by the ICTY. 16 HRW’s investigatory agenda was certainly underlined by its
report “Prosecute Now!”, where Helsinki Watch, a division of HRW, pre-
sented “summaries of eight cases that, with immediate investigation, will
be strong candidates for prosecution”. 17
The report provided the “legal basis and potential evidence necessary
to prosecute those first cases before the Tribunal”. 18 And indeed, despite
separate investigations by the ICTY-Prosecution, the eight cases selected
by HRW and Helsinki were among the very first cases that the Office in-
vestigated. 19
Apart from HRW, Physicians for Human Rights (‘PHR’) conducted
“multiple mass grave investigations across the former Yugoslavia in the
1990s for the Tribunal”, 20 which provided important. PHR called those per-
sons “investigators” that “exhumed and identified remains in several large
mass graves and gathered evidence showing the victims were executed”. 21
They established “teams of forensic scientists to locate mass gravesites,
exhume bodies, conduct autopsies and report the evidence and findings to
13
Emma Daly, “Beyond Justice: How the Yugoslav Tribunal Made History”, in Human Rights
Watch, 19 December 2017 (available on its web site). See also Ellis, 2011, p. 143, see above
note 10.
14
Human Rights Watch, “War Crimes in Bosnia-Hercegovina”, 1 August 1992 (available on
its web site).
15
Daly, 2017, see above note 13.
16
Ellis, 2011, p. 143, see above note 10; Korey, 1998, p. 322, see above note 12.
17
Helsinki Watch, Prosecute Now!, 1 August 1993.
18
Ellis, 2011, p. 144, see above note 10.
19
Korey, 1998, p. 325, see above note 12.
20
Physicians for Human Rights (‘PHR’), “Bosnian Serb Commander Ratko Mladic Convicted
of Genocide, War Crimes, Crimes Against Humanity”, 22 November 2017 (available on its
web site).
21
PHR, “Mass Grave Investigations | Mass Crimes in Srebrenica”, undated (available on its
web site).

the tribunals”. 22 The Former Director of the PHR’s International Forensic

Program, William Haglund, testified in the trial of Radovan Karadzic. 23
NGOs, IGOs and the media also played an important part in the ini-
tial investigations into the genocide that occurred in Rwanda in 1994. It is
no exaggeration to contend that the creation of the ICTR was also –
amongst other factors – the result of their work on the ground. 24 As former
ICTR Prosecutor Jallow states:
Reports from NGOs proved very helpful in enabling the OTP
to gather pertinent, substantiated data. Though NGOs are not
in essence investigatory bodies the extent of the investigations
underlying these reports and the level of analysis they
achieved indicated a true effort and genuine commitment by
many such organizations to produce verifiable facts. Witness
interviews, for instance, were very useful not only for learning
about the incidents they described but also for corroborating
other events and reports. 25
17.2.1.2. Kosovo
In Kosovo, too, evidence about the forced expulsion, arbitrary killings, tor-
ture and sexual assault of the Albanians was gathered by NGOs. 26 Journal-
ists and human rights researchers have investigated, documented and re-
ported many individual accounts of human rights violations taking place in
Kosovo. 27
PHR and the Program on Forced Migration and Health of Columbia
University’s Joseph L. Mailman School of Public Health designed a study
to “establish patterns of human rights violations among Kosovar refugees
by Serb forces using a population-based approach”. 28 The study “randomly
22
23
PHR, “Forensic science is applied in nearly every area of our work and is crucial to docu-
ment mass crimes”, undated (available on its web site).
24
In the same vein, see Hassan B. Jallow, “Challenges of Investigating and Prosecuting Inter-
national Crimes”, in Emmanuel Decaux, Adama Dieng and Malick Sow (eds.), From Hu-
man Rights to International Criminal Law, Martinus Nijhoff, Leiden, Boston, 2007, p. 437
(438).
25
Ibid., p. 438.
26
27
PHR, “War Crimes in Kosovo – A Population-Based Assessment of Human Rights Violation
Against Kosovar Albanians”, 1 August 1999, p. 1 (available on its web site).
28
Ibid.

sampled 1,209 Kosovar refugees in 31 refugee camps and collective cen-

ters in Albania and Macedonia between April 19, 1999 and May 3, 1999.
The survey assessed human rights abuses among 11,458 household mem-
bers while living in Kosovo”. 29 Furthermore, the Independent Law Com-
mission asked the American Bar Association’s Central European and Eura-
sia Initiative (‘ABA-CEELI’) to “establish a team of experts to review this
information and compile data from other NGOs concerning the human
rights violations in Kosovo”. 30 ABA-CEELI conducted comprehensive sta-
tistical studies to add clarity and precision to the potential evidence. 31
ABA-CEELI established the Kosovo War Crimes Documentation Project
(led by Executive Director Mark Ellis) 32 to interview refugees and provide
victim statements to the ICTY, collaborating with a coalition of Albanian
NGOs called the Center for Peace Through Justice to gather critical refugee
interviews. 33 Between April and October 1999, ABA-CEELI volunteers in
Albania, Macedonia, Kosovo, Poland, and Ft. Dix, New Jersey, worked
with translators and local investigators to assemble accounts of Kosovar
refugees. 34 Apart from NGOs such as the previously mentioned HRW and
PHR, the American Association for the Advancement of Science
(‘AAAS’) – with members of the Human Rights Data Analysis Group
(‘HRDAG’) – wrote several reports on the conflict. 35 Employing the statis-
tical expertise of the AAAS and HRDAG, NGO-investigations collected
evidence of ethnic cleansing against Kosovar Albanians. 36 In its report “Po-
litical Killings in Kosova/Kosovo, March-June 1999”, ABA-CEELI and
the Science and Human Rights Program of the AAAS concluded that “ap-
proximately 10,500 Kosovar Albanians were killed between March 20 and
June 12, 1999, with a 95 percent confidence interval from 7,449 to
29
Ibid.
30
31
See, for instance, American Bar Association and Central and East European Law Initiative
(‘ABA-CEELI’), An Introduction to the Human Trafficking Assessment Tool, December
2005 (available on its web site). See also Ellis, 2011, p. 156, see above note 10.
32
ABA-CEELI, American Association for the Advancement of Science (‘AAAS’), Political
Killings in Kosova/Kosovo, March-June 1999, 2000, p. xi (available on its web site).
33
Ellis, 2011, p. 157, see above note 10; ABA-CEELI, AAAS, 2000, p. xi, see above note 32.
34
Ibid.
35
See Human Rights Data Analysis Group (‘HRDAG’), “Kosovo” (available on its web
sitehttps://hrdag.org/kosovo/).
36

13,627”. 37 This analysis was used by the ICTY-OTP in the trial of Slo-
bodan Milošević to refute the argument that the killings were simply a con-
sequence of battles between the Kosovo Liberation Army and Serbian forc-
es. 38
17.2.1.3. Sierra Leone, Cambodia, Liberia, MH17
In Sierra Leone, No Peace Without Justice (‘NPWJ’) initiated a Conflict
Mapping Program, namely
the reconstruction of the chain of events during the ten-year
war through the scrupulous selection and debriefing of key in-
dividuals throughout the country whose profession, role in
their community or in the forces involved in the conflict,
placed them in a position to follow events as they unfolded. 39
NPWJ’s analysis was “based on testimonial and other data overlaid with
order of battle and command structures of the various forces as they
evolved over time and space”. 40 The mapping aimed at establishing the
“chain of command within the armed forces operating in Sierra Leone and
assembling these disparate pieces of information to create the bigger pic-
ture of the decade-long conflict in Sierra Leone” to demonstrate “direct and
command responsibility for crimes committed during the conflict”. 41
As in Kosovo, in 1999, the ABA established a Sierra Leone War
Crimes Documentation Project aimed at contributing to the documentation
of the war crimes committed in Sierra Leone between 1991 and 2002, and,
37
ABA-CEELI, AAAS, 2000, p. xi, see above note 32.
38
The International Criminal Tribunal for the former Yugoslavia (‘ICTY’), Prosecutor v. Slo-
bodan Milosevic, Transcript, IT-02-54, 14 March 2002, p. 2256:
During the break, I checked some assertions that you denied, and I would like to ask you
a few questions about this. Namely, I asked about your cooperation and adjustment of
data to the data of the International Crisis Group, and you said that was not true. How-
ever, on the website of your AAA association, and that is website
hrdataaas.org/kosovo/index/html [as interpreted], titled “Political Killings in Kosovo
from March to June 1999,” in the column called “Statistical Analysis of Data,” it says:
The method of killing people in Kosovo coincides with migrations, and this claim corre-
sponds to the data obtained from the International Crisis Group; and then others are
enumerated as well.
39
No Peace Without Justice (‘NPWJ’), “Conflict Mapping in Sierra Leone: Violations of In-
ternational Humanitarian Law 1991 to 2002”, Preface, p. III (available on its web site).
40
Ibid., p. VII.
41
Ibid., p. VIII.

thereby, strengthening the ongoing truth and reconciliation process. 42 In

Cambodia, the International Crisis Group, in partnership with NPWJ 43 and
the Documentation Centre of Cambodia, 44 has created similar successful
documentation projects for the Extraordinary Chambers in the Courts of
Cambodia (‘ECCC’).
In Liberia, the Swiss NGO Civitas Maxima and the Global Justice
and Research Project had documented crimes allegedly committed by Mar-
tina Johnson and the National Patriotic Front of Liberia of Charles Taylor. 45
The information collected by both organisations was eventually used by
Belgian authorities in the arrest and prosecution of Johnson. Last but not
least, a major breakthrough of the Dutch-led Joint Investigation Team in
the investigation into the downing of flight MH17 was the identification of
a key suspect by the research and investigation network Bellingcat. 46
17.2.2. Special Focus: Private International Criminal Investigations
in Syria
Despite growing expectation, the international criminal community has re-
mained largely unable to stop the alleged commission of international
crimes in Syria. Russia vetoed 12 UN Security Council resolutions regard-
ing the conflict. As a result, alternative ways to bring perpetrators to justice
were pursued, inter alia:
First, the Organisation for the Prohibition of Chemical Weapons in-
stalled a fact-finding mission 47 and decided
that the Secretariat shall put in place arrangements to identify
the perpetrators of the use of chemical weapons in the Syrian
Arab Republic by identifying and reporting on all information
42
AAAS, “Partnership 8: Surveying Human Rights Abuses in Sierra Leone” (available on its
web site).
43
See International Crisis Group, Reality Demands: Documenting Violations of International
Humanitarian Law in Kosovo 1999, 27 June 2000 (available on its web site); Ellis, 2011,
44
See Documentation Centre of Cambodia, “Documentation” (available on its web site).
45
See Civitas Maxima, “Our Work” (available on its web site).
46
See Bellingcat, “Key MH17 Figure Identified As Senior FSB Official: Colonel General An-
drey Burlaka”, 28 April 2020 (available on its web site).
47
See Organisation for the Prohibition of Chemical Weapons, “Fact-Finding Mission” (availa-
ble on its web site). In more detail Rebecca Barber, “Uniting for Peace Not Aggression: Re-
sponding to Chemical Weapons in Syria Without Breaking the Law”, in Journal of Conflict
and Security Law, 2018, vol. 24, no. 1, p. 74.

potentially relevant to the origin of those chemical weapons

[…]. 48
Second, Syrian civil society organisations and a few innovative
NGOs have been working to document and build cases against those most
responsible in Syria. 49 Third, a test of a completely new and unique form of
international criminal investigations was put in place: after the Security
Council remained inactive, to ensure accountability for international crimes
committed in the war in Syria, on 21 December 2016, the UN General As-
sembly (‘UNGA’) created the “International, Impartial and Independent
Mechanism to Assist in the Investigation and Prosecution of Those Re-
sponsible for the Most Serious Crimes under International Law Committed
in the Syrian Arab Republic since March 2011” (‘IIIM’) with Resolution
71/248. 50 The Syria Mechanism is a subsidiary organ of the UNGA and not
a prosecutorial body but “quasi-prosecutorial”, meaning that it is required
to
prepare files to assist in the investigation and prosecution of
the persons responsible and to establish the connection be-
tween crime-based evidence and the persons responsible, di-
rectly or indirectly, for such alleged crimes, focusing in par-
ticular on linkage evidence and evidence pertaining to mens
rea and to specific modes of criminal liability. 51
48
Organisation for the Prohibition of Chemical Weapons, Addressing the threat from Chemical
Weapons Use, 27 June 2018, C-SS-4/DEC.3, para. 10 (https://www.legal-tools.org/doc/
lmqyd4/).
49
Ingrid Elliott, “‘A Meaningful Step towards Accountability’? A View from the Field on the
United Nations International, Impartial and Independent Mechanism for Syria”, in Journal
of International Criminal Justice, 2017, vol. 15, no. 2, p. 240; Michael P. Scharf, Milena
Sterio, and Paul R. Williams, The Syrian Conflict’s Impact on International Law, Cambridge
University Press, Cambridge, 2020, pp. 4 ff.
50
United Nations General Assembly, International, Impartial and Independent Mechanism to
Assist in the Investigation and Prosecution of Those Responsible for the Most Serious
Crimes under International Law Committed in the Syrian Arab Republic since March 2011,
UN Doc. A/RES/71/248, 11 January 2017 (https://www.legal-tools.org/doc/fecaf0/). See al-
so Christian Wenaweser and James Cockayne, “Justice for Syria? The International, Impar-
tial and Independent Mechanism and the Emergence of the UN General Assembly in the
Realm of International Criminal Justice”, in Journal of International Criminal Justice, 2017,
vol. 15, no. 2, pp. 211–230; Elliott, 2017, pp. 239–256, see above note 49; Alex Whiting,
“An Investigation Mechanism for Syria. The General Assembly Steps into the Breach”, in
Journal of International Criminal Justice, 2017, vol. 15, no. 2, pp. 231–237.
51
United Nations General Assembly, Implementation of the resolution establishing the Inter-
national, Impartial and Independent Mechanism to Assist in the Investigation and Prosecu-
tion of Persons Responsible for the Most Serious Crimes under International Law Commit-

It is headed by Catherine Marchi-Uhel, former Judge at the ECCC and

former Senior Legal Officer and Head of Chambers at the ICTY. 52 In gen-
eral, at the UN-level, the following measures have been taken to investigate
international crimes: UN Fact-Finding Missions (‘FFMs’), Commissions of
Inquiry (‘CoIs’), and the mentioned novel investigative mechanisms. 53
These bodies do not only include legal advisers and coordinators but also
(partly experienced) investigators – despite the fact that they are not always
perceived to have a criminal accountability mandate. 54
In addition, CIJA is collecting information that could eventually be
used to hold perpetrators of international humanitarian law violations ac-
countable. CIJA’s private actions amidst the ongoing conflict in Syria rep-
resent a departure from the practice of conducting international criminal
investigations under the aegis of public institutions. Burgis-Kasthala calls
this “entrepreneurial justice”. 55 CIJA has developed organisationally into a
not-for-profit that is funded by a number of States and organisations, in-
cluding the United Kingdom, the European Union, Canada and Germany. 56
CIJA “has 130 specialist personnel investigating, gathering and preserving
evidence, analysing and building case files and indictments against those
most responsible in Syria (and Iraq in terms of Da’esh crimes)”. 57 It “com-
bines international expertise with local on the ground capacity building
ted in the Syrian Arab Republic since March 2011, UN Doc. A/71/755, 19 January 2017
(https://www.legal-tools.org/doc/a0cd85/). See also Elliott, 2017, pp. 239–256, see above
note 49.
52
United Nations, “Secretary-General appoints Catherine Marchi-Uhel of France to head In-
ternational Impartial Independent Mechanism Investigating Serious Crimes in Syria”, 3 July
2017, SG/A/1744-BIO/4979-DC/3720 (available on the UN’s web site); Nick Cumming-
Bruce, “Ex-judge chosen by U.N. to Gather Evidence of Syria War Crimes”, The New York
Times, 4 July 2017.
53
An instructive overview can be found on the UN Human Rights Council’s website: https://
www.ohchr.org/EN/HRBodies/HRC/Pages/COIs.aspx.
54
Sareta Ashraph and Federica D’Alessandra, “Structural Challenges Confronted by UN Ac-
countability Mandates: Perspectives from Current and Former Staff (Part II)”, OpinioJuris,
14 October 2020.
55
Michelle Burgis-Kasthala, “Entrepreneurial Justice: Syria, the Commission for International
Justice and Accountability and the Renewal of International Criminal Justice”, in European
Journal of International Law, 2020, vol. 30, no. 4, pp. 1174 ff. with a very detailed and in-
structive account of CIJA, its protagonists and work on pp. 1176 ff.
56
Melinda Rankin, “Investigating Crimes against Humanity in Syria and Iraq: The Commis-
sion for International Justice and Accountability”, in Global Responsibility to Protect, 2017,
vol. 9, no. 4, pp. 400–401.
57
Elliott, 2017, p. 245, see above note 49.

which effectively develops a local Syrian civil society response. CIJA

works with trained and mentored Syrian investigators with access to areas
across Syria”. 58
Even though CIJA is not meant to replace public institutions in-
volved in criminal investigations, but rather complement them, it symbolis-
es a trend of the international criminal community towards private investi-
gations, once political leaders display a lack of will to officially investigate
the commission of core international crimes.
17.3. Advantages of Private International Criminal Investigations
The advantages of investigations conducted by private entities in the inter-
national field are obvious – even when there is, at a later moment, an offi-
cial investigation. Members of those entities are often among the first per-
sons to view crime scenes. Investigators of Prosecutor’s Offices of ICTs
rarely have the opportunity to inspect a crime scene until well after the un-
derlying conduct has been perpetrated. 59 Consequently, in the 2016-2018
Strategic Plan, the ICC OTP explains:
Preliminary examinations are critical to the Office in its de-
termination of whether to open an investigation. They also
greatly facilitate the Office’s investigative work in various
ways, such as: e.g. by systematically capturing and exploiting
open source data; and building networks of cooperation part-
ners and contacts for handover for investigative activities; and
identifying potential cases for future investigations. 60
As an interesting side note, the reference to open-source 61 data disappeared
in the 12019-2021 Strategic Plan. 62 Furthermore, the OTP declared that it
58
Ibid.
59
60
ICC Office of the Prosecutor (‘OTP’), Strategic Plan 2016-2018, 16 November 2015, p. 20
(https://www.legal-tools.org/doc/2dbc2d/).
61
Stressing its importance: Nikita Mehandru and Alexa Koenig, “ICTs, Social Media & the
Future of Human Rights”, in Duke Law & Technology Review, 2019, vol. 17, no. 1, pp. 129–
145; for a nuanced and differentiated account, weighing advantages and risks of open source
information in international fact finding, see Yvonne McDermott, Daragh Murray and Alexa
Koenig, “Digital Accountability Symposium: Whose Stories Get Told, and by Whom? Rep-
resentativeness in Open Source Human Rights Investigations”, OpinioJuris, 19 December
2019. The authors are part of a larger team that initiated the project “Using open source re-
search to transform the discovery and documentation of Human Rights Violations”, see
OSR4Rights, “Using open source research to transform the discovery and documentation of
Human Rights Violations” (available on its web site).

“will also react promptly to upsurges or serious risks of violence by rein-

forcing its early interaction with States, international, regional organisa-
tions and NGOs in order to fine-tune its assessment and coordinate next
steps”. 63 In its current Strategic Plan, the OTP explicitly observed that
“more individuals and civil society actors are collecting relevant infor-
mation as events unfold”. 64 Last but not least, according to Article 44(4) of
the ICC Statute, the ICC
may, in exceptional circumstances, employ the expertise of
gratis personnel offered by States Parties, intergovernmental
organizations or nongovernmental organizations to assist with
the work of any of the organs of the Court. The Prosecutor
may accept any such offer on behalf of the Office of the Pros-
ecutor.
Bergsmo and Wiley also identify “preliminary analysis of open-
source materials, operational planning and liaison with personnel employed
by IGOs, NGOs, governmental and other organisations who have prepared
reports of particular interest to the investigative body” as one of their four
broad phases of investigation services of international criminal jurisdic-
tions:. 65 As to the components of an investigation, they highlight especially
two: “(a) the work to establish the so-called crime base of the case; and (b)
the process to develop information on the link between the suspect and the
actual perpetration of the crimes in question”. 66
CIJA has preserved and analysed over 600,000 pages of original
documentation, including regime military and intelligence documents, 67
and focused on the linkage evidence in order to build leadership cases and
indictments. 68 As Elliott describes, “it has a ‘names database’ with over one
million entries, and three indictments or pre-trial files against 25 top re-
gime officials including Assad, and a further three indictment or case files
against over 35 Da’esh operatives in Syria and Iraq”. The explicit purpose
62
ICC OTP, Strategic Plan 2019-2021, 17 July 2019 (https://www.legal-tools.org/doc/7ncqt3/).
63
ICC OTP, 2015, p. 21, see above note 60.
64
ICC OTP, 2019, p. 21, see above note 62.
65
Bergsmo and Wiley, 2008, pp. 12–13, see above note 1.
66
Ibid., p. 8.
67
Seema Kassab, “Justice in Syria: Individual Criminal Liability for Highest Officials in the
Assad Regime”, in Michigan Journal of International Law, 2018, vol. 39, no. 2, p. 283
(287); Elliott, 2017, p. 239, see above note 49.
68
Kassab, 2018, p. 287, see above note 67.

of CIJA is to assist national and international prosecutions. 69 This assis-

tance proved to be quite effective in Germany: as the weekly magazine Der
Spiegel reported on 8 June 2018, the German Federal Prosecutor issued an
internationalised arrest warrant for Jamil Hassan, head of Syria’s Air Force
Intelligence Directorate on charges of war crimes and crimes against hu-
manity. 70 On 29 October 2019, the German Federal Prosecutor announced
that it charged two Syrians, Anwar R. and Eyad A., whom he believed to be
former secret service officers, with crimes against humanity. 71 The Europe-
an Center for Constitutional and Human Rights (‘ECCHR’), by their own
account an “independent, non-profit legal and educational organization”, 72
supported witnesses whose testimony led, among other things, to the
charging decision of the German Federal Prosecutor. 73 In a decision of 6
March 2020, the Higher Regional Court of Koblenz confirmed the charges
and committed Anwar R. and Eyad A. for trial. 74 The start of the trial on 23
April 2020 was viewed by observers as a “historic step” towards accounta-
bility of perpetrators in Syria. 75
Where an initial threshold of suspicion is met, and the case has some
link to Germany, German authorities will open a so-called ‘Strukturverfah-
ren’ or a background investigation. 76 As the ECCHR describes,
69
See Chris Engels, Written Testimony before the Commission on Security and Cooperation in
Europe, 22 September 2016; Elliott, 2017, p. 245, see above note 49.
70
See Jörg Diehl, Christoph Reuter, and Fidelius Schmid, “Die Jagd”, in Der Spiegel, 8 June
2018, pp. 40–42; Boris Burghardt, “Endlich! – Erster Haftbefehl gegen einen ranghohen
Vertreter des syrischen Assad-Regimes”, in Völkerrechtsblog, 11 June 2018.
71
Generalbundesanwalt, “Anklage gegen zwei mutmaßliche Mitarbeiter des syrischen Ge-
heimdienstes wegen der Begehung von Verbrechen gegen die Menschlichkeit u.a. erhoben”,
29 October 2019 (available on its web site). See also Philip Oltermann and Emma Graham-
Harrison, “Germany charges two Syrians with crimes against humanity”, The Guardian, 29
October 2019 (available on its web site).
72
See European Center for Constitutional and Human Rights (‘ECCHR’), “Who we are”
73
ECCHR, “With the Frist Criminal Trial Worldwide on Torture in Syria, German Courts to
Set International Precedent”, 29 October 2019 (available on its web site).
74
Oberlandesgericht Koblenz, Beschluss v. 6.3.2020, 1 StE 9/19.
75
See, for instance, Amnesty International, “Syria: Torture trial in Germany a ‘historic step’
towards justice”, 22 April 2020. See the instructive comment of Elisabeth Baier, “A puzzle
coming together – The henchmen of Assad’s torture regime on trial in Germany”, in Völker-
rechtsblog, 23 April 2020.
76
See the recent account of Christian Ritscher, “Aktuelle Entwicklung in der Strafverfolgung
des Generalbundesanwalts auf dem Gebiet des Völkerstrafrechts”, in Zeitschrift für Interna-
tionale Strafrechtsdogmatik, 2019, pp. 599 ff.

[t]hese proceedings qualify as investigations as defined in the

German Code of Criminal Procedure and can thus involve
criminal justice mechanisms such as the hearing of witness
testimony. They are comparable to ‘situations’ under scrutiny
at the ICC. Over the course of these proceedings, individual
suspects may be identified. Further investigations are then
pursued against these suspects in separate proceedings. 77
While early Strukturverfahren focused – among other things – on
Rwanda and Congo, it has now centred to a great extent on Syria, Iraq and
Sri Lanka. 78 The strong suspicion that the suspects had carried out the al-
leged crimes is based – to a considerable extent – on evidence that has been
collected by private individuals and entities. First, the photographs taken
by “Caesar”, the code name of a former Syrian military photographer who
brought over 50,000 photographs out of the country, 28,000 of which show
detainees in Syrian prisons killed by torture, outright execution, disease,
malnutrition or other ill-treatment. 79 Second, the assistance of the ECCHR,
which provided the testimony from six survivors of torture in Al Khatib
detention centre in Damascus. 80 Third, CIJA, who provided documentary
evidence against one of the two former secret service officers. 81 Nerma
Jelačić, CIJA’s Deputy Director, announced on Twitter: “#CIJA is proud to
have supported the #German prosecutor’s investigation and arrest of the
first high-ranking Syrian regime official”. 82
In addition, an earlier call for an international criminal trial in Ger-
many was made in November 2016, when six German lawyers filed a crim-
inal complaint against the Syrian President Bashar al-Assad for his in-
volvement in the commission of war crimes and crimes against humanity
77
ECCHR, Universal Jurisdiction in Germany? – The Congo War Crimes Trial: First Case
under the Code of Crimes against International Law, 8 June 2016, p. 7 (available on its web
site).
78
Cf. Christian Ritscher, “‘Foreign Fighters’ und Kriegsvölkerstrafrecht”, in Zeitschrift für
Internationale Strafrechtsdogmatik, 2016, vol. 11, pp. 807 (807 f.); Ritscher, 2019, p. 600,
see above note 76; Kai Ambos, Internationales Strafrecht, fifth edition, C.H. Beck, Mün-
chen, 2018, § 6 mn. 40.
79
See Sara Afshar, “Assad’s Syria recorded its own atrocities. The world can’t ignore them”,
The Guardian, 27 August 2018; Ritscher, 2019, p. 600, see above note 76.
80
See Nick Cumming-Bruce, “Germany Arrests Syrian Intelligence Officers Accused of
Crimes Against Humanity”, The New York Times, 13 February 2019.
81
See Diehl, Reuter and Schmid, 2018, p. 41, see above note 70.
82
Nerma Jelačić, “Tweet”, Twitter, 13 February 2019.

between 26 April and 19 November 2016 in the Syrian town of Aleppo. 83

The evidence was mainly collected by NGOs such as Amnesty Internation-
al, HRW and Physicians for Human Rights. A reporter of the weekly maga-
zine Die Zeit argues that Germany is the appropriate place to hold a trial
against Assad, since the country has accepted over half a million Syrian
refugees within the last six years, the highest number in Europe. 84 These
refugees could be used as potential witnesses. 85 As to the quality of CIJA’s
work, Stephen Rapp, who led the prosecutions at the ICTR and in Sierra
Leone, claimed that CIJA’s documentation was “much richer than anything
I’ve seen, and anything I’ve prosecuted in this area”. 86
17.4. Terminological Remarks
In national jurisdictions, private investigations are nothing unusual, as I
have demonstrated elsewhere. 87 Nevertheless, it is hard to find a compre-
hensive definition of private investigators, probably due to their diverse
occurrence. 88
The term “investigator” has roots in the Latin noun vestigium, mean-
ing ‘sole of the foot’, ‘footprint’ or, more figuratively, ‘something lost’ or
‘that has passed before’. 89 Gill and Hart therefore conclude: an investigator
is “someone who “tracks” or “traces out” something that is missing; some-
thing that has occurred, or something that was or is known by someone but
remains hidden”; and a private investigator is someone who “either runs or
is employed by a business which provides investigative services for a
fee”. 90 An even broader definition seems to be employed by Bockemühl,
who implicitly defines ‘private investigation’ as every investigation not
83
Reported in Kristin Helberg, “Der Kriegsverbrecher Assad gehört vor Gericht”, Zeit Online,
28 November 2016.
84
Ibid.
85
Ibid.
86
Ben Taub, “The Assad Files”, The New Yorker, 18 April 2016 (available on its web site). See
also Kassab, 2018, p. 289, see above note 67.
87
Alexander Heinze, “Private International Criminal Investigations”, in Zeitschrift für interna-
tionale Strafrechtsdogmatik, 2019, pp. 173–174.
88
Ibid., p. 174.
89
Martin Gill and Jerry Hart, “Exploring Investigative Policing: A Study of Private Detectives
in Britain”, in The British Journal of Criminology, 1997, vol. 37, no. 4, p. 550 with fn. 1.
90
Ibid.

conducted by the prosecution. 91 Thus, these broad definitions are subject to

all sorts of qualifications and refinements. Prenzler uses “private investiga-
tors”, “inquiry agents” and “private agents” interchangeably. 92 In his view,
“[t]he term ‘private investigator’ has both generic and specific legal defini-
tions. In its broadest terms it relates to any person who conducts enquiries
for a customer or employer. This may include serving summonses after lo-
cating a person, as well as repossessing property”. 93 Button blames the di-
versity of the branch for the impossibility to define private investigators:
“[T]here are other occupations that compete with and undertake similar
activities”. 94 Fraud investigations, for instance, can be conducted by private
investigators but also by “accountants” and “specialized forensic account-
ants”. 95 Who can tell the difference between an accountant and a private
detective after having watched “The Accountant”, starring Ben Affleck, a
movie about the forensic accountant Christian Wolff, who – living with a
high functioning form of autism – discovers that 61 million dollars have
been embezzled from the company who hired him? Investigative journal-
ists and solicitors are also performing acts that could be assigned to a pri-
vate investigator, 96 not to mention corporate compliance and internal inves-
tigations, 97 which include the screening of documents; the monitoring of
91
Jan Bockemühl, Private Ermittlungen im Strafprozeß, Nomos: Baden-Baden, 1996, pp. 15
ff., reviewed by André Klip, “Private investigations in criminal proceedings, a contribution
to the concept of inadmissible evidence (in German)”, in European Journal of Crime, Crim-
inal Law and Criminal Justice, 1998, vol. 6, p. 83.
92
Tim Prenzler, Private Investigators in Australia: Work, Law, Ethics and Regulation, Report
to the Criminology Research Council, 2001, p. 5 (available on the web site of the Australian
Criminology Research Council).
93
Ibid., p. 7. See also Johnston, “Private Investigation”, in Tim Newburn, Tom Williamson and
Alan Wright (eds.), Handbook of Criminal Investigation, Willan Publishing, Abingdon and
New York, 2007, p. 278.
94
Mark Button, “Beyond the Public Gaze — The Exclusion of Private Investigators from the
British Debate over Regulating Private Security”, in International Journal of the Sociology
of Law, 1998, vol. 26, no. 1, p. 2.
95
Ibid., p. 2.
96
Ibid.
97
See, generally, Laura Christiane Nienaber, Umfang, Grenzen und Verwertbarkeit compli-
ancebasierter unternehmensinterner Ermittlungen, Schriften zu Compliance, vol. 14, No-
mos, Baden-Baden, 2019. Internal investigation can be defined as “an inquiry performed by
a company or its agent after the company is made aware of a serious and reasonably plausi-
ble allegation of corporate misconduct”, see Abraham Gitterman, “Ethical Issues and Practi-
cal Challenges Raised by Internal Investigations in the Life Sciences Industry”, in Defense
Counsel Journal, 2013, vol. 80, no. 4, p. 374. They are especially employed in the context of
Deferred Prosecution Agreements, where the company shares interview memoranda and

snail mail and email communication, and of phone conversations; and the
audio-visual observation of the work place. 98 Internal investigators regular-
ly even conduct ‘interviews’ with employees of the company. 99 The list of
those resembling activities – store detectives, solicitors and even psychics –
is long. 100 George and Button, therefore, use a more complex definition,
reproduced by Johnston: private investigators are
[i]ndividuals (whether in house or contract) and firms (other
than public enforcement bodies) who offer services related to
the obtaining, selling or supplying of any information relating
to the identity, conduct, movements, whereabouts, associa-
tions, transactions or character of any person, groups of per-
sons or association, or of any other type of organization. 101
The narrowest definition would reduce private investigators to “work either
for the victim or for the defendant or his attorney in criminal proceed-
ings”. 102 Dörmann provides a slightly broader definition:
Usually, private investigators working in the criminal justice
field do so on behalf of the defence, checking the accuracy of
police evidence and looking for witnesses who might under-
mine the case for the prosecution. By contrast, criminal inves-
tigations for private companies usually aim to establish the
causes of loss and of any guilt associated with such loss. 103
The difficulty to define the term ‘private investigator’ or ‘private in-
vestigations’ is increased on the international level. Here, too, many actors
carry out the work of investigators, such as journalists or the media in gen-
eral, as the above-mentioned ‘Caesar’ photos illustrate. 104 But even when
other materials generated in an internal investigation, see Federico Mazzacuva, “Justifica-

tions and Purposes of Negotiated Justice for Corporate Offenders: Deferred and Non-
Prosecution Agreements in the UK and US Systems of Criminal Justice”, in Journal of
Criminal Law, 2014, vol. 78, no. 3, p. 258.
98
Werner Leitner, “Unternehmensinterne Ermittlungen im Konzern”, in Klaus Lüderssen et al.
(eds), Festschrift für Wolf Schiller: zum 65 Geburtstag am 12 Januar 2014, Nomos, Baden-
Baden, 2014, p. 433.
99
Ibid.
100
Button, 1998, p. 2, see above note 94.
101
Bruce George and Mark Button, Private Security, vol. 1, Palgrave MacMillan, London,
2000, p. 88.
102
Rory J. McMahon, Practical Handbook for Private Investigators, CRC Press, Boca Raton,
London, New York, Washington, DC, 2001, p. 22.
103
Johnston, 2007, p. 285, see above note 93.
104
Afshar, 2018, see above note 79.

the term ‘private investigator’ is narrowed down to IGOs or NGOs, the na-
ture of these organisations is often unclear. Thus, any definition would be
arbitrary. 105 The only suggestion I would make is to dispense of the term
‘private’, since it is too broad and seems to be rather occupied by a domes-
tic understanding. I also recommend avoiding the term ‘human rights’,
since agencies such as CIJA do investigative work without human rights
monitoring. Therefore, the best term to use would therefore be ‘third party
investigations’, which goes back to Bergsmo and Wiley’s description of
personnel “not serving with a belligerent party”. 106
17.5. Private Investigations: A Matter of Ethics and Integrity
17.5.1. The Ethical Problem with Private Investigations
Lawyers are expected to abide by laws, professional rules, and informal
professional norms, and in many jurisdictions, they are also required to
abide by a professional code of conduct. 107 Professional legal ethics in-
volve recognising that lawyers are often confronted with ethical dilemmas.
Criminal lawyers, in particular, face “conflicting values, aims and inter-
ests”. 108 They are expected, however, to separate the “morality of the[ir]
representation” from the “morality of the client’s cause”. 109 A criminal
lawyer is expected to vigorously argue for her side of the case, whether as a
defence lawyer or a prosecution lawyer, and whether or not she thinks that
she in fact has the most compelling argument. But this vigour remains lim-
ited by ethical constraints, such as the moral requirement to respect the
dignity of all persons involved in a criminal trial, and the moral prohibition
of lying to advance a client’s interests. While a defence lawyer may have
less control over criminal justice proceedings other than determining how
best to advocate for his client, a prosecutor has additional ethical obliga-
105
In the same vein for the national level, see Johnston, 2007, p. 278, see above note 93.
106
107
See Donald Nicolson, “Making Lawyers Moral? Ethical Codes and Moral Character”, in
Legal Studies, 2005, vol. 25, no. 4, pp. 601–26; Liz Campbell, Andrew Ashworth and Mike
Redmayne, The Criminal Process, fifth edition, Oxford University Press, 2019, pp. 60 ff.
108
Richard Young and Andrew Sanders, “The Ethics of Prosecution Lawyers”, in Legal Ethics,
2004, vol. 7, no. 2, pp. 190–209.
109
David Luban, Legal Ethics and Human Dignity, Cambridge University Press, 2007, p. 20.

tions due to her ability to select defendants for trial and determine the
scope of the criminal justice process. 110
The normative foundations of prosecutorial ethics consist of two
main concepts: a prosecutor’s general duty to seek justice, 111 and the moral
theories that inform the corresponding, specific ethical obligations of the
prosecutor. In both adversarial and inquisitorial systems of law, 112 regard-
less of other specific duties, the prosecutor is expected to seek justice. 113
While the particular features of what constitutes justice vary between, and
sometimes within, criminal legal systems, it is always tied to the concept of
fairness. 114
110
This of course applies more to the criminal justice process in the legal tradition of the com-
mon law than to a civil law criminal process, cf. Alexander Heinze, International Criminal
Procedure and Disclosure, Duncker & Humblot, Berlin, 2014, pp. 107 ff. See also Alexan-
der Heinze and Shannon Fyfe, “Prosecutorial Ethics and Preliminary Examinations at the
ICC”, in Morten Bergsmo and Carsten Stahn (eds.), Quality Control in Preliminary Exami-
nation: Volume 2, Torkel Opsahl Academic EPublisher (‘TOAEP’), Brussels, 2018, pp. 5–6
(https://www.legal-tools.org/doc/dff594/).
111
See Fred C. Zacharias, “Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecu-
tors Do Justice?”, in Vanderbilt Law Review, 1991, vol. 44, no. 1, pp. 45 ff.
112
About the meaning of terms ‘inquisitorial’ and ‘adversarial’ in more detail, see Heinze, 2014,
pp. 117 ff., see above note 110; Kai Ambos and Alexander Heinze, “Abbreviated Procedures
in Comparative Criminal Procedure: A Structural Approach with a View to International
Criminal Procedure”, in Morten Bergsmo (ed.), Abbreviated Criminal Procedures for Core
International Crimes, TOAEP, Brussels, 2017, pp. 27, 28 ff. (https://www.toaep.org/ps-pdf/
9-bergsmo).
113
Shawn Marie Boyne, The German Prosecution Service: Guardians of the Law, Springer,
Berlin, Heidelberg, 2014, p. 5 (“[P]rosecutors possess an ethical obligation to pursue jus-
tice”). The fact that the search for truth in inquisitorial systems is a constitutive feature
(Heinze, 2014, p. 107, see above note 110) does not render justice as an ethical obligation of
the prosecutor less relevant. In inquisitorial systems too truth is a means to the end of justice,
as Karl Peters famously pointed out in his seminal work about the German criminal process
(Karl Peters, Strafprozeß, C.F. Müller, Heidelberg, 1985, p. 82 (“Das Strafverfahren kann
das Ziel der Gerechtigkeit nur erreichen, wenn es die Wahrheit findet”).) In the same vein,
see Theodore L. Kubicek, Adversarial Justice: America’s Court System on Trial, Algora,
New York, 2006, p. 37 with further references. See also Barton L. Ingraham, The Structure
of Criminal Procedure, Greenwood Press, New York et al., 1987, p. 13.
114
See, for example, ICC, Situation in the Democratic Republic of the Congo, The Prosecutor v.
Thomas Lubanga Dyilo, Appeals Chamber, Judgment on the Appeal of Mr. Thomas Luban-
ga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pur-
suant to article 19 (2) (a) of the Statute of 3 October 2006, 14 December 2006, ICC-01/04-
01/06-772, para. 37 (‘Lubanga, 2006’) (http://www.legal-tools.org/doc/1505f7/): “Where
fair trial becomes impossible because of breaches of the fundamental rights of the suspect or
the accused by his/her accusers, it would be a contradiction in terms to put the person on tri-
al. Justice could not be done. A fair trial is the only means to do justice. If no fair trial can be

Deontological constraints are especially well suited to play the pri-

mary role in shaping prosecutorial or investigatory ethics and promoting
fair trials. Danner has argued that prosecutorial decisions, for instance, will
be both legitimate and perceived as such if they are taken in a principled,
reasoned, and impartial manner. 115 The ICC’s OTP has adopted this ap-
proach in several policy papers. The duty to treat every individual as an end
in him- or herself and, thus, apply the same rules without bias or concern
about outcomes lends itself to ensuring procedural fairness. The prosecutor
is constrained by “rules which apply in an all-or-nothing, categorical man-
ner without reference to the particular context or consequences of the pro-
hibited or required behaviour”. 116 The impartiality demanded by deontolog-
ical constraints applies “separately to every relation between persons”,
which means that no one’s rights may be violated, even if the violation
could be “offset by benefits that arise elsewhere” in the justice system. 117
This is not the place to go too deep into the matter of prosecutorial
ethics, I have done this elsewhere with Shannon Fyfe. 118 One aspect of the
procedural fairness mentioned above is that investigative staff employed by
international criminal jurisdictions are ethically bound to search for incul-
patory as well as exculpatory evidence from the start of an inquiry. 119 It is
doubtful whether staff employed by CIJA abides by the same ethical obli-
gations. This does not mean that NGOs or IGOs can never be trusted to
comply with certain ethical obligations. In fact, human rights organisations
are more concerned with issues of monitoring 120 and protection through
held, the object of the judicial process is frustrated and the process must be stopped”. See al-
so Catherine S. Namakula, “The Human Rights Mandate of a Prosecutor of an International
Criminal Trial”, in International Criminal Law Review, 2017, vol. 17, no. 5, pp. 935, 936.
About the meaning of fairness in that context Heinze and Fyfe, 2018, pp. 6–8, see above
note 110. 
115
Allison M. Danner, “Enhancing the Legitimacy and Accountability of Prosecutorial Discre-
tion at the International Criminal Court”, in The American Journal of International Law,
2003, vol. 97, no. 3, pp. 536–37.
116
Nicolson, 2005, p. 606, see above note 107.
117
Daniel Markovits, A Modern Legal Ethics: Adversary Advocacy in a Democratic Age,
Princeton University Press, New York, 2010, p. 7.
118
Heinze and Fyfe, “The Role of the Prosecutor”, in Kai Ambos et al. (eds.), Core Concepts in
Criminal Law and Justice, vol. 1, Cambridge University Press, 2020, pp. 344 ff.; Heinze and
Fyfe, 2018, pp. 3 ff., see above note 110. 
119
120
A definition of human rights monitoring is provided in Anette Faye Jacobsen (ed.), Human
Rights Monitoring, Martinus Nijhoff, Leiden, Boston, 2008, p. 1:

advocacy. 121 The problem lies in entities, such as CIJA, which do mainly
investigatory work and have donors at the same time. 122 Here, concerns
about the substantive outcomes of investigations and criminal trials, the
overall performance or record of an investigator or prosecutor, or the social
and political impacts of criminal trials, will likely involve more consequen-
tialist considerations. 123 From a psychological perspective, competition in
that sense regularly leads to role-induced bias or what Simon et al. labelled
the “myside bias”. 124
This is most visible at the national level. In meeting the needs of
their clients, private investigators pursue instrumental ends. 125 As Johnston
describes:
Unlike police detectives, who collect evidence for construct-
ing cases within a system of public justice, private investiga-
tors aim only to minimize the economic, social or personal
losses of their clients. Instrumentalism is driven by a proactive,
risk-based mentality, the object of which is to anticipate, rec-
Human rights monitoring can be defined as the systematic collection, verification, and
use of information to address human rights problems or compliances. The compiled data
will have to be analyzed against agreed standards. These standards primarily entail the
human rights obligations and commitments that the State is a party to, and thus has
committed itself to live up to; as well as additional human rights provisions which have
come to be recognized as customary law applicable to all authorities regardless of the
State’s formal acknowledgement […].
121
122
See also Burgis-Kasthala, 2020, p. 1173, see above note 55.
123
Frédéric Mégret, “International Prosecutors: Accountability and Ethics”, in Leuven Centre
for Global Governance Studies, Working Paper No. 18, 2008, p. 8. Surely, consequentialist
considerations also play an important role in prosecutorial decision making, especially at the
ICC, as I have argued – together with Kai Ambos – in amicus curiae observation, see ICC,
Situation in the Islamic Republic of Afghanistan, Written Submissions in the Proceedings
Relating to the Appeals Filed Against the “Decision Pursuant to Article 15 of the Rome
Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of
Afghanistan” Issued on 12 April 2019 (ICC-02/17-33) and Pursuant to “Decision on the par-
ticipation of amici curiae, the Office of Public Counsel for the Defence and the cross-border
victims” Issued on 14 October 2019 (ICC-02/17-97), 14 November 2019, Ambos and Heinze,
ICC-02/17-108 (https://www.legal-tools.org/doc/5v8d2b/) and Annex (https://www.legal-
tools.org/doc/7m3bj2/).
124
Dan Simon et al., “The Adversarial Mindset”, in Psychology, Public Policy, and Law, 2020,
vol. 26, pp. 354 ff.
125

ognize and appraise risks and, having done so, to initiate ac-
tions that will help to minimize their impact on clients. 126
Prenzler, in his previously mentioned study, found that “the large majority
[of interviewees] also felt that anecdotal reports of misconduct were of suf-
ficient gravity to justify greater control and scrutiny of the industry by gov-
ernment”. 127 The investigators he interviewed particularly nominated “pri-
vacy as the area where their profession posed the greatest danger to the
public”. 128 Privacy is especially problematic in the case of social media
evidence. Take, for instance, the investigations in Myanmar, where the
Human Rights Council recently created another investigative mecha-
nism. 129 Human Rights Council resolution 34/22 mandated the Mission
to establish the facts and circumstances of the alleged recent
human rights violations by military and security forces, and
abuses, in Myanmar, in particular in Rakhine State, including
but not limited to arbitrary detention, torture and inhuman
treatment, rape and other forms of sexual violence, extrajudi-
cial, summary or arbitrary killings, enforced disappearances,
forced displacement and unlawful destruction of property,
with a view to ensuring full accountability for perpetrators and
justice for victims. 130
126
Ibid.
127
Prenzler, 2001, p. 6, see above note 92.
128
Ibid., p. 36.
129
Global Justice Center, “Statement on the Creation of the IIIM for Myanmar”, press release,
27 September 2018 (available on its web site); International Commission of Jurists, “My-
anmar: creation of UN mechanism a step toward accountability”, 27 September 2018
(available on its web site). See generally Neriah Yue, “The ‘Weaponization’ of Facebook in
Myanmar: A Case for Corporate Criminal Liability’, in Hastings Law Journal, 2020, vol. 71,
pp. 816 ff.; Emma Palmer, Adapting International Criminal Justice in Southeast Asia: Be-
yond the International Criminal Court, Cambridge University Press, Cambridge, 2020,
pp. 159 ff.; Derek Tonkin, “Mission Creep Untrammelled: The UN Fact-Finding Mission on
Myanmar”, FICHL Policy Brief Series No. 102 (2020), Torkel Opsahl Academic EPublisher,
Brussels, 2020 (http://www.toaep.org/pbs-pdf/102-tonkin).
130
Human Rights Council, Report of the detailed findings of the Independent International
Fact-Finding Mission on Myanmar, UN Doc. A/HRC/39/CRP.2, 17 September 2018, para. 4
(https://www.legal-tools.org/doc/0c0c69/). See also https://iimm.un.org/mandate-and-
establishment/. In more detail Heinze, 2019, pp. 171–172, see above note 87; Aksenova,
Bergsmo and Stahn, 2020, pp. 10 ff., see above note 1, with a list of “International Fact-
Finding Mandates 1992-2020” at pp. 32–44. Generally about fact-finding by the Special
Procedures of the Human Rights Council Martin Scheinin, “Improving Fact-Finding in Trea-
ty-Based Human Rights Mechanisms and the Special Procedures of the United Nations Hu-
man Rights Council”, in Morten Bergsmo and Carsten Stahn (eds.), Quality Control in Fact-

Apart from 875 in-depth interviews the mission conducted, 131 it also em-
phasised the important role of social media information. 132 It reported,
among other things:
The Mission has seen a vast amount of hate speech across all
types of platforms, including the print media, broadcasts,
pamphlets, CD/DVDs, songs, webpages and social media ac-
counts. For example, the Mission encountered over 150 online
public social media accounts, pages and groups that have reg-
ularly spread messages amounting to hate speech against Mus-
lims in general or Rohingya in particular. 133
In another study, Prenzler and King reported that according to “one-
third of the respondents, non-compliance [with ethical boundaries] was
fairly widespread”, while others felt that instances of non-compliance were
rather isolated. 134 Button describes that “there are many examples of illegal
and unethical behaviour. There have been many alleged and reported inci-
dents of private investigators bugging premises, breaking and entering,
kidnapping or gaining confidential information from the police”. 135
As previously remarked, investigators are expected to separate the
“morality in their representation” from the “morality of the client’s
cause”. 136 This may lead to a moral dilemma when investigators who com-
ply with ethical standards are asked by their clients to ignore these. Gill
and Hart describe that “there is a demand for services that can only be con-
sidered to be of dubious legitimacy”. 137 All investigators interviewed
Finding, second edition, Brussels, TOAEP, 2020, pp. 75 ff. About the question whether in-
formation collected by human rights bodies and “human rights investigators” can generally
be admitted as direct evidence at ICTs, see Lyal S. Sunga, “Can International Criminal In-
vestigators and Prosecutors Afford to Ignore Information from United Nations Human
Rights Sources?”, ibid., pp. 409 ff.
131
Ibid., para. 19.
132
Ibid., paras. 515, 744. See also Emma Irving, “The Role of Social Media is Significant:
Facebook and the Fact Finding Mission on Myanmar”, Opinio Juris, 7 September 2018.
133
Human Rights Council, 2018, para. 1310, see above note 130.
134
Timothy Prenzler and Michael King, The Role of Private Investigators and Commercial
Agents in Law Enforcement, Australian Institute of Criminology, August 2002, p. 5 (availa-
ble on the repository of Griffith University).
135
Button, 1998, p. 10, see above note 94. See also Johnston, 2007, see above note 93.
136
Luban, 2007, p. 20, see above note 109.
137
Martin Gill and Jerry Hart, “Private Security: Enforcing Corporate Security Policy Using
Private Investigators”, in European Journal on Criminal Policy and Research, 1999, vol. 7,
p. 255.

could cite instances when clients, including members of the

legal profession, had directly asked them to perform illegal or
unethical actions. While some cited occasions when they had
been asked to organise a serious offence, such as murder or
serious assault, these most commonly included gaining unlaw-
ful access to confidential information, such as criminal rec-
ords, medical histories and bank account details. 138
Similar ethical problems are expected at the international level.
Leaders and members of NGOs have private interests, such as financial
interests, the increase of group membership, personal career motivations,
or simply personal relationships. 139 Entities such as CIJA investigate and
collect material without the permission of the UNSC or an international
treaty body. 140 Thus, the investigations undertaken by third parties have not
only been applauded. 141 It comes to no surprise that tribunals often impose
limits upon investigatory NGOs. For example, the ICTY-OTP has cau-
tioned NGOs not to conduct in-depth interviews with potential witnesses
and have established strict guidelines for collecting evidence. 142
Of course, it is emphasised that “CIJA adheres to international stand-
ards of ethical conduct and evidence management”. 143 Rankin, however,
paints a too optimistic picture when she remarks: “CIJA’s objectives re-
quire an extraordinary degree of individual responsibility at all ranks of the
organisation, for example many Syrian investigators share a personal re-
sponsibility to collect the material in an effort to establish the truth, and
share a sense of public duty to investigate”. 144 The question is thus how
evidence that was obtained by private individuals who, in whatever form,
acted illegally or unethically, is and should be treated.
138
Gill and Hart, 1999, p. 255, see above note 137.
139
Michael J. Struett, “The Politics of Discursive Legitimacy: Understanding the Dynamics and
Implications of Prosecutorial Discretion at the International Criminal Court”, in Steven C.
Roach (ed.), Governance, Order, and the International Criminal Court, Oxford University
Press, 2009, p. 115.
140
Rankin, 2017, p. 414, see above note 56.
141
Cheryl Hardcastle for instance, Windsor-Tecumseh Minister for Canadian Parliament, high-
lighted: “We do know in the international community that some people have criticized the
privatizing of international criminal investigations”, cited in ibid., p. 405, fn. 39.
142
See Danner, 2003, p. 532, see above note 115; Ellis, 2011, p. 156, see above note 10.
143
144
Ibid.

17.5.2. Integrity as the Central Value for Private Investigators

To view the work of private investigators solely from a perspective of fair-
ness and truth does not grasp the complexities of the matter. Instead, it is
the idea of the ‘integrity’ or ‘legitimacy’ of the trial as a distinctive kind of
legal process that should be focused on. 145 The question is: can integrity be
the value that provides guidance for a private individual conducting an in-
vestigation? To be concrete, let us suppose that a private investigator offers
money to witness in return for information about a suspect and his or her
criminal activities. Does ‘integrity’ provide a guideline for this investigator
to refrain from such activities?
17.5.2.1. Integrity Defined
Integrity as a jurisprudential concept has roots that reach into the nine-
teenth century. There are countless English cases that recur to integrity in
relation to personal or professional honesty, good character or witness cred-
ibility. 146
To define integrity, I will do what seems methodologically superfi-
cial and consult – at least initially – a dictionary. To be clear, this does have
a methodological reason. Integrity as a term shall first and foremost be de-
fined pragmatically, 147 that is, how it is used, 148 and not so much how it
should be used or can be used (the latter semantic dimension does a play a
role, though). Thus, I approach integrity as a semantic concept in the first
place, and only secondarily as a philosophical concept. The reason for this
methodological decision is twofold: First, integrity especially as an eviden-
tiary concept has a strong pragmatic connotation. In other words, decision-
makers expect a certain degree of practicability from a definition of integri-
ty, despite its apparent vagueness. Second, integrity as a philosophical con-
cept is covered elsewhere in this volume – in manifold ways and by schol-
ars who could do it better than I ever could.
145
Antony Duff et al., The Trial on Trial: Volume 3, Towards a Normative Theory of the Crimi-
nal Trial, Hart, Oxford and Portland, Oregon, 2007, p. 108.
146
Paul Roberts et al., “Introduction: Re-examining Criminal Process Through the Lens of
Integrity”, in Paul Roberts et al. (eds.), The Integrity of Criminal Process, Hart, Oxford and
Portland, 2016, p. 4 with further references.
147
About the pragmatical turn in textual interpretation, see Umberto Eco, Die Grenzen der
Interpretation, Hanser, München, 1992, pp. 350 ff.
148
About the usage of words see already Wittgenstein, Philosophische Untersuchungen,
posthum second edition, Blackwell, Malden, 1958, reprint 1999, p. 20.

According to a lexical definition, integrity is “[t]he condition of hav-

ing no part or element taken away or wanting; undivided or unbroken state;
material wholeness, completeness, entirety”. 149 In addition, integrity is also
equated with “soundness”, meant “[i]n a moral sense”, as an “[u]nimpaired
moral state; freedom from moral corruption; innocence, sinlessness”. 150
Last but not least, from a lexical perspective, ‘integrity’ is understood as
“[s]oundness of moral principle; the character of uncorrupted virtue, esp. in
relation to truth and fair dealing; uprightness, honesty, sincerity”. 151 The
different lexical definitions underline the different perspectives ‘integrity’
can be viewed from: a) from the perspective of the suspect or witness
(“having no part or element taken away or wanting”); b) from the perspec-
tive of the investigator (“soundness”, “the character of uncorrupted virtue,
esp. in relation to truth and fair dealing; uprightness, honesty, sincerity”;
and c) from the perspective of the entire process (“undivided or unbroken
state”; “material wholeness, completeness, entirety”). I call those the ‘ob-
ject’, ‘subject’ and ‘context’ perspectives of integrity. It goes without say-
ing that the perspectives do not unfold in a vacuum but are somewhat inter-
twined.
17.5.2.1.1. Integrity from the Perspective of the Person Interrogated
or Interviewed: The Object Perspective
Let us start with integrity as “[t]he condition of having no part or element
taken away or wanting; undivided or unbroken state; material wholeness,
completeness, entirety”. 152 During an interrogation or an interview, sus-
pects have certain rights: the right not to be physically or mentally injured
or otherwise mistreated, the privilege against self-incrimination and a
number of ancillary procedural rights, such as the right to consult a law-
yer. 153 This rather cursory description must suffice at this point, I will re-
turn to the rights question in due course. The integrity of the individual is a
cornerstone of these rights. 154 The physical and mental integrity of the sus-
149
John A. Simpson and Edmund S.C. Weiner, The Compact Oxford English Dictionary, Clar-
endon Press, Oxford University Press, Oxford, 1989 and 2002, p. 860 [1066].
150
Ibid., p. 860 [1066].
151
Ibid.
152
Ibid.
153
Adrian A.S. Zuckerman, “Coercion and the Judicial Ascertainment of Truth”, in Israel Law
Review, 1989, vol. 23, no. 2-3, p. 357.
154
Ibid.

pect must not be violated. 155 Here, the notion of integrity is closely con-
nected to human dignity, 156 as enshrined in various human rights instru-
ments. 157 Understood this way, integrity is often equated with autonomy,
individuality, independence, responsibility, and self-knowledge. 158 As Ger-
ald Dworkin puts it: “Individuals have the right to be treated as persons, as
masters of their own body, as responsible for their decisions, as makers of
choices”. 159 The Kantian footprint (namely: Kant’s Categorical Impera-
tive) 160 is obvious here. This supreme principle of ethics aims at the moti-
vation (or reasons) for acting; any consideration of external behaviour is
absent. 161 Kant’s Categorical Imperative illustrates that dignity is “intrinsic,
deontological and non-negotiable (replaceable), it is the basis of the indi-
viduality and the mutual recognition (inter-personal relationship) of the
members of a society”. 162 By contrast, the principle of Kant’s legal philos-
155
Israel, Supreme Court, Abu Midjam v. State of Israel, 1980, P.D. 34(4) 533, p. 539 – about
the case, see Rinat Kitai Sangero and Yuval Merin, “Israel: The Supreme Court’s New, Cau-
tious Exclusionary Rule”, in Stephen C. Thaman (ed.), Exclusionary Rules in Comparative
Law, Springer, Dordrecht, 2013, p. 105. See also Eliahu Harnon, “Criminal Procedure and
Evidence”, in Israel Law Review, 1990, vol. 24, no. 3-4, p. 592 (603).
156
Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on
common procedures for granting and withdrawing international protection (recast), 29 June
2013, OJ L. 180/60, Article 13 (‘Procedures Directive’) (https://www.legal-tools.org/doc/
7ijsc2/).
157
See, for instance, Charter of Fundamental Rights of the European Union, 14 December 2007,
2007/C 303/01, Article 1 (https://www.legal-tools.org/doc/715d2e/). See also Galina Cornel-
isse, “Protecting human dignity across and within borders: the legal regulation of interna-
tional migration in Europe”, in Logi Gunnarsson, Ulrike Mürbe, and Norman Weiß (eds.),
The Human Right to a Dignified Existence in an International Context: Legal and Philo-
sophical Perspectives, Nomos, Baden-Baden, 2019, pp. 97–98.
158
Gerald Dworkin, The Theory and Practice of Autonomy, Cambridge University Press, 1988
and 1997, p. 6.
159
Ibid., p. 103.
160
“I ought never to act except in such a way that I could also will that my maxim should be-
come a universal law”, Immanuel Kant, Groundwork of the Metaphysics of Morals, Mary J.
Gregor (ed., trans.), Cambridge University Press, 1997, p. 15 [402].
161
Luke J. Davies, “A Kantian Defense of the Right to Health Care”, in Reidar Maliks and
Andreas Føllesdal (eds.), Kantian Theory and Human Rights, Routledge, London, 2014,
p. 82; Wilfried Küper, “Das Strafgesetz ist ein kategorischer Imperativ: Zum ‘Strafgesetz’ in
Kants Rechtslehre”, in Michael Hettinger and Jan Zopfs (eds.), Wilfried Küper – Strafrecht-
liche Beiträge zu Rechtsgeschichte und Rechtsphilosophie, Mohr Siebeck, Tübingen, 2017,
pp. 397 ff.
162
Marie E. Newhouse, “Two Types of Legal Wrongdoing”, in Legal Theory, 2017, vol. 22, no.
1, pp. 59 ff.; Ulfried Neumann, “Das Rechtsprinzip der Menschenwürde als Schutz elemen-
tarer menschlicher Bedürfnisse: Versuch einer Eingrenzung”, in Archiv für Rechts- und

ophy, the Universal Principle of Right, 163 “transposes the categorical im-
perative to the sphere of external action”. 164 Freedom referred to by the
Universal Principle of Right is “external freedom”, it “bars considerations
of internal motivation”. 165 The distinction between external and internal
freedom is Kant’s
most profound statement on the relationship between an au-
tonomous morality and political practice. By reconstructing
Kant’s arguments in favor of their distinction, we see the dy-
namics behind his theory of justice: The pure practical reason
of morality (inner freedom) informs – and thereby subordi-
nates – the structure of outer freedom and the political reality
with which it is associated. 166
Taking Kant’s Categorical Imperative and the Universal Principle of Right
as a basis, the ‘object perspective’ is not only a semantic description but at
the same time an evaluation, since the infringement of the suspect’s rights
turns this suspect into an object, 167 up to a dehumanisation. 168
Sozialphilosophie, 2017, vol. 103, no. 3, p. 293; Julian A. Sempill, “Law, Dignity and the
Elusive Promise of a Third Way”, in Oxford Journal of Legal Studies, 2018, vol. 38, no. 2,
p. 228.
163
Any action is right if it can coexist with everyone’s freedom in accordance with a universal
law, or if on its maxim the freedom of choice of each can coexist with everyone’s freedom in
accordance with a universal law. See Immanuel Kant, The Metaphysics of Morals, Mary J.
Gregor (trans.), Cambridge University Press, 1991, p. 57 [231] (http://www.legal-tools.org/
doc/cb8e1e/). See also Kai Ambos, “Punishment without a Sovereign? The Ius Puniendi Is-
sue of International Criminal Law”, in Oxford Journal of Legal Studies, 2013, vol. 33, no. 2,
pp. 293, 305.
164
Benedict Vischer, “Systematicity to Excess – Kant’s Conception of the International Legal
Order”, in Stefan Kadelbach, Thomas Kleinlein and David Roth-Isigkeit (eds.), System, Or-
der, and International Law, Oxford University Press, Oxford, 2017, p. 306: “[W]hile the
categorical imperative requires the universalizability of the voluntary maxim, the principle
of right merely demands that the action – irrespectively of the agents’ motive – conforms to
a universal law”. About the different interpretations of Kant’s external action, see Dietmar
von der Pfordten, “On Kant’s Concept of Law”, in Archiv für Rechts- und Sozialphilosophie,
2015, vol. 101, no. 2, pp. 193 ff.
165
Davies, 2014, p. 82, see above note 161.
166
Antonio Franceschet, Kant and Liberal Internationalism, Palgrave Macmillan, New York,
2002, pp. 23–24.
167
Cf. Jacob Bronsther, “Torture and Respect”, in Journal of Criminal Law and Criminology,
2019, vol. 109, no. 3, p. 423 (431, albeit with regard to “penal rape”).
168
Peters, 1985, p. 82, see above note 113.

17.5.2.1.2. Integrity from the Perspective of the Interrogator or

Interviewer: The Subject Perspective
As previously mentioned, according to a lexical definition, integrity is un-
derstood as “[s]oundness of moral principle; the character of uncorrupted
virtue, esp. in relation to truth and fair dealing; uprightness, honesty, sin-
cerity”. 169 In the words of Roberts: “integrity conveys the impression of
being almost unequivocally laudable, right and good”. 170 In this way, integ-
rity is connected to authenticity, reliability, constancy, fair dealing and
sound judgement. 171 For Roberts: “A person of integrity treats others in
accordance with her deepest enduring convictions about how people ought
to be treated; she is true to her values and true to herself”. 172 This definition
illustrates that integrity and acting according to one’s perceived moral du-
ties are not necessarily the same. What about a person leading a terror re-
gime (Nazi perpetrators, for instance)? Killing hundreds of thousands of
people as a perceived act of self-defence of an allegedly higher race might
comply with his or her perceived moral duties. Yet, is this person eligible
for ascriptions of integrity? 173 The same example could be construed
around a private investigator who offers money to his or her only witness
so this witness provides the necessary proof that may lead to the prosecu-
tion of warlord X or Y. For Lenta, the same even holds true “of individuals
whose moral beliefs are not wicked but are unreasonable or unintelligi-
ble”. 174 As a result, McFall distinguishes between personal integrity and
moral integrity: personal integrity “requires that an agent (1) subscribe to
some consistent set of principles or commitments and (2), in the face of
temptation or challenge, (3) uphold these principles or commitments, (4)
for what the agent takes to be the right reasons”. 175 To have moral integrity,
by contrast, “it is natural to suppose that one must have some lower-order
moral commitments; that moral integrity adds a moral requirement to per-
sonal integrity”. 176 Thus, there are cases “in which we would want to grant
169
Simpson and Weiner, 1989 and 2002, p. 860 [1066], see above note 149.
170
Roberts et al., 2016, p. 10, see above note 146.
171
Ibid.
172
Ibid.
173
In the same vein, see Patrick Lenta, “Freedom of Conscience and the Value of Personal In-
tegrity”, in Ratio Juris, 2016, vol. 29, no. 2, pp. 247–248.
174
Ibid.
175
Lynne McFall, “Integrity”, in Ethics, 1987, vol. 98, no. 1, p. 5 (9).
176
Ibid., p. 14.

that someone had personal integrity, even if we were to find his ideal mor-
ally abhorrent”. 177 In reaction to this, it is questioned whether personal in-
tegrity has value whatsoever. In Lenta’s words: “One might think that per-
sonal integrity is valueless since an individual’s possessing personal integ-
rity is compatible with his being wicked. In the case of the genocidal Nazi
who possesses personal integrity it may well be better if he lacked personal
integrity”. 178
The integrity of those who collect evidence has long been recognised
as a central value and qualification. Take, for instance, the Oath of Honor
of the International Association of Chiefs of Police: “On my honor, I will
never betray my badge, my integrity, my character, or the public trust. I
will always have the courage to hold myself and others accountable for our
actions. I will always uphold the Constitution, my community, and the
agency I serve”. 179 Similarly, prosecutors “are meant to hold their profes-
sional integrity” and expected to have an “ethical compass”. 180 Corrigan
goes even further: “The first, best, and most effective shield against injus-
tice for an individual accused [person], or society in general, must be found
not in the persons of defense counsel, trial judge, or appellate jurist, but in
the integrity of the prosecutor”. 181 The ICC, per its Statute, requires the
staff of the OTP and Registry to have “the highest standards of efficiency,
competency and integrity”. 182
17.5.2.1.3. Integrity from the Perspective of the Process:
The Context Perspective
As previously mentioned, according to a lexical definition, ‘integrity’ also
means “undivided or unbroken state”; “material wholeness, completeness,
entirety”. Integrity, thus, also implies normative coherence juxtaposed to
fragmentation. For the current purpose, this refers to the “material whole-
177
Ibid. (emphasis in the original).
178
Lenta, 2016, p. 248, see above note 173.
179
The International Association of Chiefs of Police (‘IACP’), “The Oath of Honor” (available
on its web site). See also Joycelyn M. Pollock, Ethical Dilemmas and Decisions in Criminal
Justice, tenth edition, Cangage, Boston, 2019, p. 129.
180
Brent E. Turvey and Craig M. Cooley, Miscarriages of Justice, Elsevier, Amsterdam et al.,
2014, p. 286.
181
Carol A. Corrigan, “On Prosecutorial Ethics”, in Hastings Constitutional Law Quarterly,
1986, vol. 13, no. 3, p. 537.
182
Rome Statute of the International Criminal Court, 17 July 1998, Article 44(2) (‘ICC Statute’)
(http://www.legal-tools.org/doc/7b9af9/).

ness, completeness, entirety” of the criminal process. 183 One proponent of

the integrity as coherence of the criminal process is Andrew Ashworth, la-
belling it the “unity of the criminal justice system”. 184 For Ashworth, a
bribe by an interrogator does not only put in question the interrogator’s in-
tegrity (depending on the definition of integrity, see above); it would also
damage the integrity of the criminal justice system “if the courts were to
act on the fruits of that investigation”. 185 Criminal justice “must carry mor-
al authority and legitimacy, and this would be significantly compromised if
courts were able to convict citizens for acts which originated in an official
error or other official misconduct”. 186 In a chameleonic fashion, integrity
from a ‘context perspective’ takes several forms here, and might appear as
legitimacy, moral authority or, “integrity as integration”. The latter was
proposed by Duff et al.:
Integrity as moral coherence is the principle that a criminal
justice system which lacks moral coherence will lack the
standing to call the defendant to account for his conduct. In-
tegrity as integration is the idea that, in assessing the standing
of the criminal process to call the defendant to answer the
charge and account for his conduct, different parts of the crim-
inal process cannot be isolated from each other. In particular,
the criminal trial cannot claim that its moral integrity is intact
in isolation, where there have been failings at an earlier stage
in the criminal process. 187
I will return to ‘integrity as integration’, as it will become a pillar of the
reaction to illegally obtained evidence. 188
183
David Dixon, “Integrity, Interrogation and Criminal Justice”, in Paul Roberts et al. (eds.),
The Integrity of Criminal Process, Hart, Oxford and Portland, 2016, p. 79.
184
Andrew Ashworth, “Testing Fidelity to Legal Values: Official Involvement and Criminal
Justice”, in Stephen Shute and Andrew P. Simester, Criminal Law Theory: Doctrines of the
General Part, Oxford University Press, 2002, p. 308.
185
Ibid., p. 309.
186
Ibid.
187
A. Duff et al., 2007, p. 226 see above note 145. See also See Andrew Ashworth, “Exploring
the Integrity Principle in Evidence and Procedure”, in Peter Mirfield and Roger Smith (eds.),
Essays for Colin Tapper, LexisNexis, London, 2003, pp. 113–115.
188
See below Section 17.5.2.3.2.3.

17.5.2.2. The Role of Integrity in Illegally Obtaining Evidence in an

Official Investigation
Wrongfully obtained evidence could potentially undermine the “fairness of
the proceedings,” bring “the administration of justice into disrepute,” or
damage “the integrity of the proceedings”. 189 As mentioned at the outset, 190
the exclusion of that evidence is the focus of the chapter, albeit not the only
possible consequence.
Let us first assume that a State actor illegally obtains evidence dur-
ing an official investigation. In such a situation, what role does integrity
play?
Illegally obtained evidence is of concern for the person who obtains
it, the person from it is obtained and for the process as a whole. As Ambos
puts it:
[P]rohibitions of evidence have not only an individual compo-
nent – safeguarding individual rights and vindicating their
violation by the exclusion of illegally obtained evidence
against the accused. They also possess a collective dimen-
sion – upholding the constitutional integrity of the legal order,
especially through the guarantee and realization of a fair tri-
al. 191
Various rationales have been advanced with respect to the question of how
to address procedural violations committed in the pre-trial phase of crimi-
nal proceedings: the ‘reliability’ rationale, the ‘disciplinary’ rationale, the
‘protective’ (or ‘remedial’) rationale, and the ‘integrity’ rationale(s). 192
189
HO Hock Lai, “Exclusion of Wrongfully Obtained Evidence: A Comparative Analysis”, in
Darryl K. Brown et al. (eds.), The Oxford Handbook of Criminal Process, Oxford University
Press, 2019, p. 834.
190
See above Section 17.1.
191
Kai Ambos, “The Transnational Use of Torture Evidence”, in Israel Law Review, 2009, vol.
42, no. 2, p. 366 (emphasis in the original, fn. omitted).
192
Kelly Pitcher, Judicial Responses to Pre-Trial Procedural Violations in International Crimi-
nal Proceedings, Asser Press, Springer, Berlin, Heidelberg, 2018, p. 185; John Jackson,
“Human Rights, Constitutional Law and Exclusionary Safeguards in Ireland”, in Paul Rob-
erts and Jill Hunter (eds.), Criminal Evidence and Human Rights, Hart, Oxford and Portland,
Oregon, 2012, p. 119 (121). For reviews of the various rationales, see Peter Mirfield, Silence,
Confessions and Improperly Obtained Evidence, Clarendon Press, Oxford, 1997, chaps. 2
and 6; Ian H. Dennis, The Law of Evidence, seventh edition, Sweet & Maxwell, Thomson
Reuters, London, 2020, mn. 3-041–3.046; Paul Roberts and Adrian Zuckerman, Criminal
Evidence, second edition, Oxford University Press, Oxford, 2010, pp. 179 ff.

17.5.2.2.1. Integrity from the Subject Perspective:

The Deterrence Theory
One of the most common rationales for exclusionary rules is the deterrence
theory (also known as the “disciplinary rationale”), 193 a policy-based, and
forward-looking 194 theory that justifies exclusion in terms of its impact on
future police behaviour. 195 The US Supreme Court, for instance, empha-
sised the deterrent effect of excluding wrongfully obtained evidence (“po-
licing the police”). 196 In Terry v. Ohio, for instance, it remarked:
Ever since its inception, the rule excluding evidence seized in
violation of the Fourth Amendment has been recognized as a
principal mode of discouraging lawless police conduct. […]
Thus, its major thrust is a deterrent one, […] and experience
has taught that it is the only effective deterrent to police mis-
conduct in the criminal context, and that, without it, the con-
stitutional guarantee against unreasonable searches and sei-
zures would be a mere ‘form of word’. 197
As LIU reports, Japanese courts too relied on the deterrence theory as a
rationale for excluding evidence. 198 Furthermore, the exclusionary rule of
the fruit of the poisonous tree is established based on the deterrence theo-
ry. 199 On this rationale, “the effect and purpose of exclusion coincide. But,
193
Peter Duff views the deterrence rationale (calling it “disciplinary rationale”) as part of the
“integrity of the process”, see Peter Duff, “Admissibility of Improperly Obtained Physical
Evidence in the Scottish Criminal Trial: The Search for Principle”, in Edinburgh Law Re-
view, 2004, vol. 8, no. 2, p. 152 (160).
194
Roberts and Hunter, 2012, p. 121, see above note 192 (“Another argument often advanced is
that the prohibition on the use of evidence serves as a deterrent to investigators and prosecu-
tors from repeating their improper conduct in the future”); Adrian A.S. Zuckerman, “Illegal-
ly-Obtained Evidence—Discretion as a Guardian of Legitimacy”, in Current Legal Prob-
lems, 1987, vol. 40, no. 1, pp. 56–57.
195
HO, 2019, p. 824, see above note 189; Roberts and Zuckerman, 2010, p. 185, see above note
192.
196
Stephen C. Thaman and Dominik Brodowski, “Exclusion or Non-Use of Illegally Gathered
Evidence in the Criminal Process: Focus on Common Law and German Approaches”, in Kai
Ambos et al. (eds.), Core Concepts in Criminal Law and Justice, vol. 1, Cambridge Univer-
sity Press, 2020, p. 458.
197
United States, Supreme Court (‘US SC’), Terry v. Ohio, 1968, 392 US 1, p. 12. See also US
SC, Mapp v. Ohio, 1961, 367 US 643, p. 655.
198
LIU Jingkun, The Exclusionary Rule of Illegal Evidence in China, Springer, Law Press Chi-
na, Beijing, 2019, p. 44.
199
Ibid.

conceptually, the two are distinct. In many other jurisdictions, deterrence is

not the (primary) purpose of exclusion”. 200
As the prominence of the deterrence grew, so did the criticism
against this rationale of excluding wrongfully obtained evidence. With re-
gard to the theory itself, Duff et al. pointed out that “the relevant compara-
tor in terms of deterrent effect is not failing to respond to the wrong, but
rather using alternative sanctions for the wrong”. 201 Especially in the eyes
of the public, the rationale has an ironic connotation. It at least requires an
extensive line of justification why citizens should be protected from police
misconduct by letting the (alleged) guilty go free. 202 The criticism of a lack
of correlation between the exclusionary rule and the purpose to discipline
the State actor is well known. 203
The strongest objection is – this probably applies to every deterrence
argument within the realm of criminal justice – that there is no valid empir-
ical research at present. 204 A possible assessment of how law enforcement
officials respond to exclusionary rules is difficult to make and past studies
“have asserted that empirical data has been unable to substantiate or refute
a deterrent effect”. 205 Second, there are other forms to ‘police the police’,
such as disciplinary proceedings or criminal prosecution of law enforce-
ment officials. 206 It is doubtful whether the exclusion of evidence is really
the best vindication for police wrongdoing, especially when the individual
officer is more concerned with his or her own safety, 207 the expectations of
peers, 208 or in making an arrest and/or has no personal interest in a convic-
200
HO, 2019, p. 824, see above note 189.
201
A. Duff et al., 2007, p. 228, see above note 145.
202
Zuckerman, 1987, p. 59, see above note 194; Roberts and Zuckerman, 2010, p. 27, see
above note 192; P. Duff, 2004, p. 161, see above note 193: “are we really justified in letting
the guilty go free in order that we can protect the public from the police?”.
203
See, for example, Luis Greco, “Warum gerade Beweisverbot? Ketzerische Bemerkungen zur
Figur des Beweisverbots”, in Ulrich Stein et al. (eds.), Systematik in Strafrechtswissenschaft
und Gesetzgebung, Festschrift für Klaus Rogall zum 70. Geburtstag am 10. August 2018,
Duncker & Humblot, 2018, pp. 485–515 (507 ff.).
204
HO, 2019, p. 825, see above note 189; Gless and Macula, 2019, p. 355, see above note 8.
205
Gless and Macula, 2019, p. 355, see above note 8.
206
As it the case in Germany, Thaman and Brodowski, 2020, p. 458, see above note 196.
207
Zuckerman, 1987, p. 59, see above note 194.
208
Ibid.

tion. 209 Third, in many criminal justice systems, officials who violate an
exclusionary rule never learn whether or not the evidence they obtained is
excluded. 210 A fourth point is made by HO:
To deter the police from breaking rules on evidence gathering,
they must know what the rules are. It is questionable whether
they do possess adequate knowledge. Exclusion will have lit-
tle signaling and disincentivization impact if there is no com-
munication channel that keeps the police in the loop every
time the court rejects the evidence that they have collected. 211
Ambos would not go so far to reject the deterrence rationale altogether but
downgrade it to a “positive side-effect”. 212
17.5.2.2.2. Integrity from Object Perspective:
The Theory of Remedies
The theory of remedies (also known as the “rights thesis”, 213 ‘vindication’,
‘remedial’ or ‘protective’ theory 214 ) focuses on the person interrogated
and – more specifically – on his or her rights. Evidence ought to be exclud-
ed because legal (subjective) rights have been infringed. 215 The idea behind
this rationale is that trials can and should protect citizens against the arbi-
trary exercise of State power. 216 If rights have been violated, the victim of
the violation is entitled to a remedy (hence the name). 217 Human rights in
the structure of criminal procedure vest the accused with legal rights which
he or she can use to oppose State repression in the investigation and prose-
cution of a crime. 218 This defensive role is denoted in legal theory as the
shield function of human rights law. 219 A criminal trial has a particularly
209
Thaman and Brodowski, 2020, p. 458, see above note 196; Gless and Macula, 2019, p. 355,
see above note 8; Zuckerman, 1987, p. 59, see above note 194.
210
Gless and Macula, 2019, p. 355, see above note 8.
211
HO, 2019, p. 825, see above note 189 (fn. omitted). In the same vein, albeit with regard to
search and seizure, see Zuckerman, 1987, p. 59, see above note 194.
212
Ambos, 2009, p. 366, see above note 191.
213
214
Zuckerman, 1987, pp. 56–57, see above note 194; P. Duff, 2004, p. 164, see above note 193.
215
About the “rights perspective” in general Campbell, Ashworth, and Redmayne, 2019, p. 46,
see above note 107; see also P. Duff, 2004, p. 155, see above note 193.
216
217
Ibid., p. 230.
218
Krešimir Kamber, Prosecuting Human Rights Offences, Brill, Leiden, 2017, p. 7.
219
Ibid.

negative effect for the (alleged) offender’s rights such as his or her reputa-
tion, financial position, personal liberty, and even life. 220 Thus, human
rights protection ensures that the individual is shielded from the State’s
abuse of the ius puniendi. 221 Of course, human rights law also mandates the
State to criminalise, investigate, prosecute and, if appropriate, punish crim-
inal attacks on human rights. 222 This role can be descriptively denoted as
the sword function of human rights law. 223 If failing to convict the defend-
ant “where there is a powerful epistemic case against him is a serious abro-
gation of responsibility by the state, it will need powerful justification in
terms of deterrence, a justification which we suspect will not be forthcom-
ing”. 224
Duff et al. integrate this shield function of human rights in a trial into
a more general communicative theory of the criminal trial. 225 In the spirit
of this communicative theory of the trial, “state power must be justified to
the defendant through the appropriate kind of communicative process,
treating him as a responsible agent”. 226 The combination of the remedy ra-
tionale and communicative theory is particularly appealing for international
investigations, as I will demonstrate below. 227
The remedial theory “is rights-based, and backward-looking, and de-
fends exclusion as a direct response to the specific wrong committed by the
police in getting the evidence”. 228 Yet, unlike the deterrence theory, which
220
Stefan Trechsel, Human Rights in Criminal Proceedings, Oxford University Press, 2005)
pp. 6 ff. (“An individual’s reputation, financial position, personal liberty, even life […] is at
stake”); Julia Geneuss, “Obstacles to Cross-fertilisation: The International Criminal Tribu-
nals’ ‘Unique Context’ and the Flexibility of the European Court of Human Rights’ Case
Law”, in Nordic Journal of International Law, 2015, vol. 84, no. 3, pp. 410–411.
221
Geneuss, 2015, pp. 410–411, see above note 220.
222
Inter–American Court of Human Rights, Case of Velásquez Rodríguez v. Honduras, Merits,
Judgment, 29 July 1988, Series C, No. 4, para. 176:
The State is obligated to investigate every situation involving a violation of the rights
protected by the Convention. If the State apparatus acts in such a way that the violation
goes unpunished and the victim's full enjoyment of such rights is not restored as soon as
possible, the State has failed to comply with its duty to ensure the free and full exercise
of those rights to the persons within its jurisdiction.
223
Kamber, 2017, p. 7, see above note 218.
224
225
Ibid., p. 227.
226
Ibid.
227
See below Section 17.5.2.3.2.3.1.
228

focuses on deterring the police’s illegal behaviours, the theory of remedies

concentrates on the vindication of rights of defendants suffered from an
illegal investigation. 229 It is thus an all-or-nothing theory that leaves con-
siderable room for balancing. 230 Furthermore, the remedy rationale has a
correlation problem: critics argue that there is no correlation between the
wrongdoing (police misconduct) and its legal consequence (exclusion of
evidence up an acquittal of the accused). 231 It is argued that other remedies
seem more convincing: disciplinary measures against the public official,
the application of substantive criminal law to the person who violated the
right of the suspect, 232 and so on. 233
17.5.2.2.3. Integrity from Context Perspective:
The Integrity of the Process
When evidence is wrongfully obtained, its exclusion is also justified by
reference to integrity, with increasing popularity 234 (at least amongst com-
mon law systems). In the words of Peter Duff: “the justification for exclud-
ing improperly obtained evidence cannot – and should not – be based on
‘internal’ concerns about the reliability of the evidence but must be based
on ‘external’ concerns relating to the integrity of the process and the broad-
er public interest”. 235 However, the utilisation of integrity varies.
229
Roberts and Hunter, 2012, p. 121, see above note 192. See especially Andrew Ashworth,
“Excluding Evidence as Protecting Rights”, in Criminal Law Review, 1977, p. 723.
230
LIU, 2019, p. 50, see above note 198.
231
Zuckerman, 1987, p. 58, see above note 194:
In a criminal trial exclusion of evidence of guilt amounts to a contribution towards the
acquittal of a person who may be guilty. It is by no means self-evident that acquittal of
the guilty is an appropriate response to earlier police transgressions. Nor is a blanket ex-
clusion capable of achieving a balance between the seriousness of the infringement and
the benefit to the accused.
232
“There are far stronger grounds for punishing an officer who deliberately broke the rules or
tricked the accused than where there has been mere inadvertence”, P. Duff, 2004, p. 161, see
above note 193.
233
See also ibid., p. 164.
234
Ibid., p. 171.
235
Ibid., p. 159.

17.5.2.2.3.1. Integrity as Moral Authority of the Verdict and Integrity

as Legitimacy
One argument is that wrongfully obtained evidence endangers the moral
authority of the verdict. 236 It is concerned with the “determination of moral
blame, as well as of legal liability, which may in turn justify the infliction
of suffering and humiliation on an individual”. 237 The argument usually
appears under different names: it may also be labelled the theory of fair
trial or (moral) legitimacy 238 of the trial. 239 Legitimacy, in this sense,
refers to a larger concept, of which factual accuracy is a major
part, but which includes additional notions of moral authority
and expressive value. In essence, legitimacy signifies an aspi-
ration that an adjudicative decision should as far as possible
be factually accurate and also consistent with other fundamen-
tal moral and political values embedded in the legal system.
The objective is that the decision should claim not only to be
factually accurate, thus fulfilling the truthfinding aim of the
legal process, but also to be morally authoritative, and to ex-
press the value of the rule of law. 240
I will address these elements in detail in the course of this chapter.
One aspect of this argument is the hypothesis that the public would hold a
critical attitude towards the fairness of the trial, and argue that the courts
fail to uphold procedural justice if wrongfully obtained evidence would be
admitted in every case and without scrutiny. 241 This is, at the same time, the
legitimacy aspect of the argument: the government “is to have legitimacy
in the sense of drawing (and being deserving of) public confidence and re-
spect”. 242 This legitimacy argument has been the driving force behind ex-
clusionary rules in the US prior to the advancement of the deterrence theo-
236
Roberts and Hunter, 2012, p. 121, see above note 192.
237
Zuckerman, 1987, p. 56, see above note 194.
238
In detail, see Dennis, 2020, mn. 2-022, see above note 192.
239
LIU, 2019, p. 46, see above note 198.
240
Dennis, 2020, mn. 2-022, see above note 192.
241
Zuckerman, 1987, p. 56, see above note 194; Roberts and Zuckerman, 2010, p. 16, see
above note 192; LIU, 2019, p. 45, see above note 198; P. Duff, 2004, p. 155, see above note
193: “[M]ost people would agree that it would not reflect well upon a criminal justice sys-
tem if it were prepared to admit incriminating statements which had been tortured out of the
accused by the police”.
242

ry. 243 As HO puts it: “To preserve judicial legitimacy, and to avoid being
tainted by the executive’s dirty hands, the court has to renounce and disas-
sociate itself from the police illegality by refusing to accept and act on the
product of the illegality”. 244 In the Rothman case before the Supreme Court
of Canada, 245 Judges Laskin and Estey stated in their dissent:
The basic reason for the exclusionary confession rule is a con-
cern for the integrity of the criminal justice system. The sup-
port and respect of the community for that system can only be
maintained if persons in authority conduct themselves in a
way that does not bring the administration of justice into dis-
repute. 246
The consideration of the public attitude is a double-edged sword: it
appears doubtful that the public, especially the victims, would accept the
decision of excluding key evidence only due to a relatively minor violation
of legal procedure. Thus, the argument of legitimacy allows for a consider-
able exercise of balancing. The theory of fair trial is an important basis of
the exclusionary rule in England. Section 78 (1) of the Police and Criminal
Evidence Act 1984 stipulates that
In any proceedings the court may refuse to allow evidence on
which the prosecution proposes to rely to be given if it ap-
pears to the court that, having regard to all the circumstances,
including the circumstances in which the evidence was ob-
tained, the admission of the evidence would have such an ad-
verse effect on the fairness of the proceedings that the court
ought not to admit it.
Amongst the rationales of exclusionary rules, the moral legitimacy ra-
tionale receives increasing popularity, 247 while it carries some inherent
dangers: “public opinion in these matters is likely to mirror the ‘populist
243
Ibid.
244
Ibid., with further references.
245
Canada, Supreme Court, Rothman v. The Queen, [1981] 1 SCR 640 (available on its web
site).
246
Ibid., p. 642.
247
P. Duff, 2004, p. 173, see above note 193: “A further response might be that the moral legit-
imacy rationale provides a better explanation of what it is that the courts actually do, even if
they do not always fully recognise or articulate their reasoning”.

punitiveness’ expressed in the tabloid press and by ‘law and order’ politi-
cians”. 248
17.5.2.2.3.2. Integrity as Reliability
The rational that provides most flexibility is the reliability theory: evidence
may be unreliable because of how it was obtained. 249 See, for instance,
Section 76(2)(b) of the Police and Criminal Evidence Act of 1984 reads:
If, in any proceedings where the prosecution proposes to give
in evidence a confession made by an accused person, it is rep-
resented to the court that the confession was or may have been
obtained […] in consequence of anything said or done which
was likely, in the circumstances existing at the time, to render
unreliable any confession which might be made by him in
consequence thereof, the court shall not allow the confession
to be given in evidence against him except in so far as the
prosecution proves to the court beyond reasonable doubt that
the confession (notwithstanding that it may be true) was not
obtained as aforesaid. 250
Two aspects render the reliability rationale an integrity concept: First, ex-
cluding evidence that has been wrongfully obtained would advance the
search for truth, since the use of unreliable evidence “increases the risk of
error in fact-finding”. 251 As previously argued, the search for truth is a
means to the end of justice and thus a vital part of the integrity of a trial.
Second, a guilty verdict that is based on unreliable evidence is an unfair
verdict. 252 An unfair verdict lacks – as already mentioned – legitimacy. Ac-
cordingly, the reliability and legitimacy theory are intertwined. The con-
nection between reliability and fairness is also underlined by the European
248
Ibid., p. 175, citing Ashworth, 2003, p. 111, see above note 187. P. Duff borrows the term
“public punitiveness” from Anthony Bottoms, “The philosophy and politics of punishment
and sentencing”, in Chris Clarkson and Rod Morgan (eds.), The Politics of Sentencing Re-
form, Clarendon Press, Oxford, 1995, pp. 39–41.
249
250
UK, Police and Criminal Evidence Act 1984, 31 October 1984, s. 78 (https://www.legal-
tools.org/doc/b52ec0/). Emphasis added.
251
HO, 2019, p. 828, see above note 189; P. Duff, 2004, p. 154, see above note 193: “The first
reason for excluding evidence is the fear that it may adversely affect the accuracy of the out-
come of the trial. This may be because the evidence is, quite simply, inherently unreliable or
because the evidence, even if factually accurate, is likely for other reasons to distort the de-
cision-making process, thus affecting the reliability of the outcome”.
252

Court of Human Rights in the Gäfgen case, where evidence was obtained
by way of torture: 253
[T]he quality of the evidence must be taken into consideration,
as must the circumstances in which it was obtained and
whether these circumstances cast doubts on its reliability or
accuracy. While no problem of fairness necessarily arises
where the evidence obtained was unsupported by other mate-
rial, it may be noted that where the evidence is very strong
and there is no risk of its being unreliable, the need for sup-
porting evidence is correspondingly weaker. 254
17.5.2.2.3.3. Integrity as Rule of Law

Especially in legal systems relying on the civil law tradition, one of the
main rationales for excluding or not admitting evidence is the rule of law
principle. Displaying all the different meanings of this principle goes be-
yond the scope of this chapter. One of the earlier and more prominent defi-
nitions 255 is provided by Dicey, who assigns to the rule of law “at least
three distinct though kindred conceptions”: 256 First,
that no man is punishable or can be lawfully made to suffer in
body or goods except for a distinct breach of law established
in the ordinary legal manner before the ordinary courts of the
land. In this sense the rule of law is contrasted with every sys-
tem of government based on the exercise by persons in author-
ity of wide, arbitrary, or discretionary powers of constraint. 257
Second,
253
European Court of Human Rights, Gäfgen v. Germany, Judgment, 1 June 2010, 22978/05;
John D. Jackson and Sarah J. Summers, The Internationalisation of Criminal Evidence,
Cambridge University Press, Cambridge et al., 2012, p. 158; Jamil Ddamulira Mujuzi, “The
Admissibility of Confessions and Real Evidence Obtained in Violation of Human Rights in
Criminal Trials in European Countries: Analysing the Jurisprudence of the European Court
of Human Rights”, in European Criminal Law Review, 2019, vol. 9, no. 3, pp. 340–345.
254
Gäfgen v. Germany, 2010, para. 164, see above note 253.
255
It should be stressed, though, that the concept of a Rule of Law goes back to Plato and Aris-
totle, see in more detail the account of Erhard Denninger, “Rechtsstaat”, in id. and Klaus
Lüderssen (eds.), Polizei und Strafprozeß im demokratischen Rechtsstaat, Suhrkamp, Frank-
furt a.M., 1978, pp. 67–72.
256
Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, tenth edition,
MacMillan, London, 1886 (reproduced in 1979), pp. 188 ff.
257
Dicey, 1886 and 1979, p. 188, see above note 256.

that here every man, whatever be his rank or condition, is sub-

ject to the ordinary law of the realm and amenable to the ju-
risdiction of the ordinary tribunals. 258
The two elements described so far can certainly be named as the two main
elements of the rule of law, independent of the legal system. 259 The third
element is one that needs to be read against the historical context:
There remains yet a third and a different sense in which the
‘rule of law’ or the predominance of the legal spirit may be
described as a special attribute of English institutions. We may
say that the constitution is pervaded by the rule of law on the
ground that the general principles of the constitution (as for
example the right to personal liberty, or the right of public
meeting) are with us the result of judicial decisions determin-
ing the rights of private persons in particular cases brought be-
fore the courts […]. 260
Defining the rule of law principle is not only beyond the scope of this
chapter, but it is also methodologically questionable. 261 I follow MacCor-
mick, student of H.L.A. Hart, in his seminal account of the meanings of the
terms ‘rule of law’ and ‘Rechtsstaatsprinzip’: 262 Every attempt to define
terms like this is problematic, since they are neither open to a descriptive
analysis nor a conventional determination. Instead, such an attempt needs
to take account of the historical context, translated into a normative princi-
258
Ibid., p. 193.
259
Erhard Denninger, “’Rechtsstaat’ oder ‘Rule of Law’ – was ist das heute?”, in Cornelius
Prittwitz et al. (eds.), Festschrift für Klaus Lüderssen, Nomos, Baden-Baden, 2002, p. 43.
260
Dicey, 1886 and 1979, p. 193, see above note 256.
261
See also Matthias Klatt, “Der Begriff des Rechtsstaats”, in Eric Hilgendorf and Jan C. Joer-
den (eds.), Handbuch Rechtsphilosophie, J.B. Metzler, Stuttgart, 2017, pp. 390 ff.; Eberhard
Schmidt-Aßmann, “§ 26 – Der Rechtsstaat”, in Josef Isensee and Paul Kirchhof (ed.),
Handbuch des Staatsrechts der Bundesrepublik Deutschland, Bd. II: Verfassungsstaat, C.F.
Müller, Heidelberg 2004, mn. 1.
262
Neil MacCormick, Questioning Sovereignty, Oxford University Press, Oxford, 1999-2002,
p. 43. About the difference between rule of law and Rechtsstaatsprinzip Oliver Lepsius,
Verwaltungsrecht unter dem Common Law. Amerikanische Entwicklungen bis zum New Deal,
Mohr Siebeck, Tübingen, 1997, pp. 207 ff. Denninger stresses that Rule of Law and
Rechtsstaatsprinzip have conceptually different roots: While the Rule of Law is political, the
Rechtsstaatsprinzip is apolitical. In England, for instance, subjective rights have always
been closely connected to a functioning process of democratic political participation. The
roots of the Rechtsstaatsprinzip, by contrast, are a reaction to the failed attempt at democra-
cy in 1848 and 1849 and are thus apolitical and individualistic, Denninger, 1978, p. 68, see
above note 255.

ple. 263 The rule of law could thus well be categorised as what Popper fa-
mously labelled as one of the “mere puzzles arising out of the misuse of
language”. 264
A central idea of the rule of law is that the government should be
subject to and accountable under the law. 265 A core value for achieving this
is the separation of powers. 266 In Germany, for instance, any State activity
infringing the rights of citizens requires a clear statutory legal basis. 267 The
criminal trial is an important platform in this system. The court’s role is to
scrutinise unlawfulness on the part of the executive – eventually to pre-
serve the integrity of the criminal process. 268 Courts make sure that the
truth in a criminal trial is not sought at any price but that there are legal
limitations on ascertaining it with the constitutional rights being protected.
Truth has an integrity component. 269 Thus, the executive must be prevented
263
Neil MacCormick, “Der Rechtsstaat und die rule of law”, in Juristenzeitung, 1984, p. 65 (67)
(author’s translation). As a result, Denninger expressly emphasizes that he attempts to
“describe” the essential, i.e. functional-necessary elements of the “invention” rule of law,
which is supposed to be ahistorical, see Denninger, 2002, p. 43, see above note 259 (“Der
folgende Versuch einer Beschreibung der ‘wesentlichen’, das heißt funktionsnatwendigen
Elemente der ,Erfindung‘ rule of law ist also auf die Bewältigung gegen— wärtiger und ab-
sehbarer zukünftiger Probleme gerichtet. Er ist damit bewusst „unhistorisch“ […].”). Klatt
recognises three phases of the development of a Rechtsstaat-definition, see in more detail
Klatt, 2017, pp. 390 ff., see above note 261.
264
Karl Popper, Unended Quest, Routledge, London and New York, 2005, p. 11.
265
Friedrich August von Hayek, The Road to Serfdom, Dymock’s Book Arcade, Sydney, 1944,
p. 54; Roberts and Zuckerman, 2010, p. 17, see above note 192.
266
Ralf Dreier, “Der Rechtsstaat im Spannungsverhältnis zwischen Gesetz und Recht”, in Ju-
ristenzeitung, 1985, vol. 40, no. 8, p. 353.
267
See German Federal Constitutional Court, Judgment of 12 Apr. 2005 – 2 BvR 581/01 =
BVerfGE 112, 304, 315 for the area of criminal procedure, and generally German Federal
Constitutional Court, Judgment of 21 Dec. 1977 – 1 BvL 1/75, 1 BvR 147/75 = BVerfGE 47,
46, 78–9; Thaman and Brodowski, 2020, p. 429, see above note 196.
268
See Pitcher, 2018, p. 117, see above note 192.
269
Richard L. Lippke, “Fundamental Values of Criminal Procedure”, in Darryl K. Brown et al.
(eds.), The Oxford Handbook of Criminal Process, Oxford University Press, Oxford, 2019,
p. 31:
I believe that it is useful to identify two subsidiary values in the service of truth. The
first is integrity, according to which the various state agents tasked with arresting, inves-
tigating, and charging individuals with crimes, and seeing to the adjudication of charges,
must respect and consistently abide by procedures that are reliable and evidence-driven.

“from using evidence that it had acquired unlawfully to support a criminal

prosecution”. 270
Ideally, the ‘law’ in ‘rule of law’ incorporates the integrity rationale:
that is, the moral authority of the verdict, legitimacy, fair trial and reliabil-
ity. As Finnis famously pointed out, the rule of law “is to secure to the sub-
jects of authority the dignity of self-direction and freedom from certain
forms of manipulation. The rule of law is thus among the requirements of
justice or fairness”. 271 Hence, when the Court of Appeals in England and
Wales held that a criminal prosecution should have been stayed when the
accused had been entrapped by State agents into committing the offence for
which he or she was standing trial, the rationale resembles the rationales
mentioned above:
[T]he judicial response to entrapment is based on the need to
uphold the rule of law. A defendant is excused, not because he
is less culpable, although he may be, but because the police
have behaved improperly. Police conduct which brings about,
to use the catch-phrase, state-created crime is unacceptable
and improper. To prosecute in such circumstances would be an
affront to the public conscience […]. In a very broad sense of
the word, such a prosecution would not be fair. 272
The main similarity between the rule of law and integrity, however,
is coherence. 273 Thus, when the separation of powers is identified as the
most prominent element of the rule of law, it merely describes the means to
an end, that is, the coherence of the law and its application. 274 At the same
time, integrity complements the rule of law. An authoritarian regime that
makes sure that the law is applied correctly, basically ensures legality, but
not the rule of law. As MacCormick rightly points out, the rule of law can
never be fully implemented by positive law. 275 MacCormick’s reasons as
follows: First, the rule of law is the formal guideline (“formale Leitlinie”)
270
See, for example, HO Hock Lai, “The Criminal Trial, the Rule of Law and the Exclusion of
Unlawfully Obtained Evidence”, in Criminal Law and Philosophy, 2016, vol. 10, no. 1,
p. 109; HO, 2019, p. 833, see above note 189.
271
John Finnis, Natural Law and Natural Rights, second edition, Oxford University Press, 2011,
p. 273.
272
United Kingdom, House of Lords (‘UK HL’), R v. Looseley, [2001] UKHL 53, [2001] WLR
2060.
273
See also Klatt, 2017, pp. 391–392, see above note 261, with further references.
274
See already MacCormick, 1984, p. 69, see above note 263.
275
Ibid. (author’s translation).

of a rational practice of law on both the level of legislation and adjudica-

tion. This guideline is the direct result of the demand that legal norms are
both enacted and applied according to the requirement of ‘reasonableness’,
regardless of the acceptance of their actual content. 276 Second, the rule of
law is closer to the natural law 277 than to the positive law and is thus cus-
tomary law. 278 This interpretation of the rule of law might be the result of
MacCormick’s affinity for the common law tradition, what he admits when
referring to Dicey’s elements of the rule of law mentioned above. The natu-
ral law dimension of the rule of law principle is indeed a neuralgic point
that caused some controversy. 279 For the purpose of this chapter, it suffices
to say that this dimension is in fact due to the element of integrity that lies
within the rule of law. Consequently, a positivist understanding of the rule
of law, 280 or at least the full rejection of its naturalistic connotation, is hard
to reconcile with the element of integrity as I defined it earlier (coherence,
moral authority, legitimacy, fairness). In this vein, Denninger opines that
‘law’ in the rule of law is comprised of the two elements, rationality and
normativity, 281 which corresponds with Fuller’s “inner morality of law”.
The “inner morality of law” is defined by the “congruence between official
action and the law”. 282 The element of congruence is the common denomi-
nator of morality and integrity. Thus, Fuller explains:
276
Ibid.: “Zum einen sind sie [die Prinzipien der Rechtsstaatlichkeit] formale Leitlinien einer
vernünftigen Rechtspraxis auf Gesetzes- und Rechtsanwendungsebene; sie gebe der Forde-
rung Ausdruck, daß Rechtsnormen unabhängig von der Akteptabilität ihrer Inhalte in Über-
einstimmung mit den Erfordernissen von formal verstandener ‘reasonableness’ erlassen und
angewandt werden müssen” (author’s translation).
277
In fact, MacCormick uses the term “überpositives Vernunftrecht”. About the difference
between Naturrecht and überposititivem Recht, Frank Dietrich, “Rechtsbegriffe”, in Eric
Hilgendorf and Jan C. Joerden (eds.), Handbuch Rechtsphilosophie, J.B. Metzler, Stuttgart,
2017, p. 2 (6).
278
MacCormick, 1984, p. 69, see above note 263: “Zum anderen sind diese Prinzipien eher
dem überpositiven Vernunftrecht als dem geschriebenen Recht zugehörig – einem Vernunft-
recht, wie es die Rechtsphilosophie und Staatslehre im Laufe der Jahrhunderte in kritischer
Auseinandersetzung mit bestehenden Rechtsordnungen entwickelt haben. Insofern sind sie
gewohnheitsrechtlich verankert” (author’s translation).
279
For references see ibid.
280
In this vein, see Denninger, 2002, pp. 44–45, see above note 259: “‘Recht’, und das heißt in
einer entwickelten industriellen und postindustriellen Gesellschaft fast ausschließlich: ge-
setztes, ‘positiviertes’, damit auch änderbares Recht, also ‘Gesetz’”.
281
Ibid., p. 46.
282
Lon L. Fuller, The Morality of Law, revised edition, Yale University Press, New Haven,
1969, p. 81.

This congruence may be destroyed or impaired in a great vari-

ety of ways: mistaken interpretation, inaccessibility of the law,
lack of insight into what is required to maintain the integrity
of a legal system, bribery, prejudice, indifference, stupidity,
and the drive toward personal power. 283
Fuller also explicitly mentions integrity as fairness:
Just as the threats toward this congruence are manifold, so the
procedural devices designed to maintain it take, of necessity, a
variety of forms. We may count here most of the elements of
‘procedural due process,’ such as the right to representation by
counsel and the right of cross-examining adverse witnesses. 284
In addition to Fuller’s account, MacCormick adds – among other
things – “reasonable consistency among laws (for contradictory laws afford
no real guidance)”. 285 Applied to actors such as the police or prosecutors,
there is thus “an expectation of consistency in the attitudes” they display. 286
Fuller’s eight principles of the rule of law are developed further by Finnis
and Raz, including the principle of proportionality. 287
Finally, the formal understanding of the rule of law (consistency, co-
herence, and so forth) is supplemented by a substantive element. 288 As
MacCormick points out with reference to Kelsen:
Where there is a constitutional separation of powers, with
checks and controls on arbitrary discretion, and a requirement
that government be conducted under clear and pre-announced
laws, and above all when these laws include a justiciable cata-
logue of fundamental rights that limit governmental power,
the Rechtsstaat in a substantive, not merely a formal sense,
exists. 289
283
Ibid.
284
Ibid.
285
MacCormick, 1999 and 2002, p. 45, see above note 262.
286
HO, 2016, pp. 119–120, see above note 270.
287
Joseph Raz, The Authority of Law – Essays on Law and Morality, Oxford University Press,
1979, pp. 208 ff.; Finnis, 2011, pp. 270 ff., see above note 271; Klatt, 2017, pp. 391–392,
see above note 261; Schmidt-Aßmann, 2004, mn. 4, see above note 261.
288
Cf. Hasso Hofmann, “Geschichtlichkeit und Universalitätsanspruch des Rechtsstaats”, in
Der Staat, 1995, vol. 34, no. 1, p. 1 (12); Schmidt-Aßmann, 2004, mn. 19, see above note
261; Klatt, 2017, p. 391, see above note 261.
289
MacCormick, 1999 and 2002, p. 43, see above note 262.

In other words, the rule of law incorporates basic civil and political
rights. 290 It protects the dignity, integrity and moral equality of persons and
groups. 291 Dworkin’s theory of law as ‘integrity’ goes into the same direc-
tion, reflecting a broad and substantive conception of the rule of law, 292 so
does Habermas’ Diskurstheorie. 293 Thus, the substantive element of the
rule of law combines the two dimensions of integrity: the systemic dimen-
sion and the deontological. It also includes the remedy rationale of exclu-
sionary rules. 294
17.5.2.2.4. Intermediate Conclusion
In this section, I have displayed the rationales for the exclusion of evidence
illegally obtained by State officials to answer the question whether integrity
should be the value that provides guidance for a private individual conduct-
ing an investigation. Within these rationales, I have identified the role of
integrity and connected it to the three perspectives of integrity introduced
at the outset of the section. The ‘remedy rationale’ corresponds with the
‘object perspective’, the ‘deterrence rationale’ with the ‘subject perspec-
tive’ and the ‘integrity of the process rationale’ with the ‘context perspec-
tive’. The latter has three variants: integrity as moral authority of the ver-
dict and integrity as legitimacy; integrity as reliability; and integrity as the
rule of law. Integrity as the rule of law may incorporate all other elements
290
Ibid., p. 46. Critically Raz, 1979, pp. 208 ff., see above note 287; Ernst-Wolfgang Böcken-
förde, “Grundrechte als Grundsatznormen – Zur gegenwärtigen Lage der Grundrechtsdog-
matik”, in Ernst-Wolfgang Böckenförde (ed.), Staat, Verfassung, Demokratie. Studien zur
Verfassungstheorie und zum Verfassungsrecht, Suhrkamp, Frankfurt a. M., 1991, pp. 190,
197 ff.
291
Martin Krygier, “Rule of Law (and Rechtsstaat)”, in James R. Silkenat, James E. Hickey, Jr.,
and Peter D. Barenboim (eds.), The Legal Doctrines of the Rule of Law and the Legal State
(Rechtsstaat), Springer, Cham, 2014, p. 52.
292
Ronald Dworkin, Law’s Empire, The Belknap Press of Harvard University Press, Cambridge,
Massachusetts, 1986, 176 ff. See also T.R.S. Allan, “Freedom, Equality, Legality”, in James
R. Silkenat, James E. Hickey, Jr., and Peter D. Barenboim (eds.), The Legal Doctrines of the
Rule of Law and the Legal State (Rechtsstaat), Springer, Cham, 2014, p. 155 (169). In the
same vein, see Jürgen Habermas, Faktizität und Geltung, fourth edition, Suhrkamp, Frank-
furt am Main, 1994, p. 272: “Denn der Gesichtspunkt der Integrität, unter dem der Richter
das geltende Recht rational rekonstruiert, ist Ausdruck einer rechtsstaatlichen Idee, die die
Rechtsprechung zusammen mit dem politischen Gesetzgeber dem Gründungsakt der Verfas-
sung und der Praxis der am Verfassungsprozeß beteiligten Staatsbürger bloß entlehnt” (em-
phasis in the original).
293
Ibid., p. 250.
294
See above Section 17.5.2.2.2.

of the ‘context perspective’, namely, the moral authority of the verdict, le-
gitimacy (fair trial) and reliability. The natural law dimension of the rule of
law is crucial for this umbrella function.
17.5.2.3. The Role of Integrity in Illegally Obtaining Evidence in a
Private Investigation
The distinction between the various perspectives mentioned above – put
differently: the individual-collective approach 295 – can be upheld on the
international level, albeit not without a determination of preceding issues.
Those issues are the nature of investigations under consideration in this
chapter and the different notions of fairness.
17.5.2.3.1. Investigatory Contexts
It lies within the nature of international criminal proceedings that the roots
of certain pieces of information can be traced back to other investigatory
contexts. This investigatory context can be non-existent – this is the situa-
tion this chapter is about: a private individual collects evidence that is then
offered to an ICT. The evaluation of the context as ‘non-existent’ stems
from the (albeit semantic, not necessarily conceptual) premise that an in-
vestigation is always conducted by State authorities, while a private person
could only conduct an ‘examination’ 296 or make an ‘inquiry’. 297 What
seems to be a tempting way to separate already, through semantics and tax-
onomy, the collection of evidence by a State actor on the one hand, and by
a private person on the other hand, is problematic in two ways. First, the
solution of conceptual puzzles through semantics and taxonomy has always
an arbitrary after taste. In other words, the problem is merely shifted to an-
other level. Second, as I will demonstrate, a systemic understanding of ‘in-
295
296
In this vein, see Nienaber, 2019, pp. 47–48, see above note 97.
297
In this vein, see Ulrich Eisenberg, Beweisrecht der StPO – Spezialkommentar, tenth edition,
C.H. Beck, München, 2017, mn. 395 (“Nachforschungen”). De Vries provides a rather broad
interpretation of term ‘investigation’ that seems to be based on the functional reading of de-
cisions of regional human rights courts, albeit ignoring the procedural context of the deci-
sions, see De Vries, 2019, p. 605, see above note 1 (“capable of leading to the identification
and punishment of those responsible”). For a definition of the term “fact-finding” – albeit
from an epistemological perspective and not from an institutional one – Simon De Smet,
“Justified Belief in the Unbelievable”, in Morten Bergsmo and Carsten Stahn (eds.), Quality
Control in Fact-Finding, second edition, TOAEP, Brussels, 2020, pp. 83 ff. Several forms of
fact-finding exercises are listed by Robertson, 2020, pp. 480–482, see above note 5.

vestigation’ can and even must include the conduct of everyone acting
within that system, namely, both State and private actors.
Moreover, the context can also be a domestic investigation, for ex-
ample, evidence obtained legally under domestic law would be obtained
illegally under the law of the ICT; entrapment by a law enforcement offi-
cial of another jurisdiction 298 – or even an international investigation,
where a third party working for an organ of the respective ICT (UN peace-
keeping forces, for instance) obtains evidence through illegal means. I will
call these contexts the inter-investigatory context (international investiga-
tion – domestic investigation); the intra-investigatory context (internal in-
vestigation by a private individual or another third actor); and the extra-
investigatory context (collection of evidence by a private individual outside
any ICT-investigation). Spatial restrictions dictate a dietary approach to
those contexts.
17.5.2.3.1.1. The Inter-Investigatory Context
The inter-investigatory context has indeed been dealt with by ICTs in the
past when national authorities obtained evidence in violation of the sus-
pect’s rights applicable before the Tribunals. In one instance, at the trial
against Mucić, the Defence contended that Austrian authorities denied then
suspect Mucić the right to counsel, the right to remain silent, and induced
him to make a confession. 299 At that time, Austrian law did not provide for
a right to counsel during questioning, which the ICTY evaluated as “not
strange and not in violation of fundamental human rights or the European
Convention on human rights”. 300 I will go into the relevant provisions on a
possible exclusion or admission of the evidence in a moment. Right now,
for the description of the inter-investigatory context it suffices to say that
the ICTY felt – unsurprisingly – that it was not bound by the law of a dif-
ferent investigatory context. 301 It is in the discretion of the Chamber,
though, whether it “may apply such rules”. 302 As a result, the Trial Cham-
298
299
ICTY, Prosecutor v. Delalić et al., Trial Chamber, Decision on Zdravko Mucic's Motion for
the Exclusion of Evidence, 2 September 1997, IT-96-21-T, para. 8 (‘Delalić et al.’) (https://
www.legal-tools.org/doc/afbced/). See also the analysis in Pitcher, 2018, p. 289, see above
note 192.
300
Delalić et al., 1997, para. 46, see above note 299.
301
Ibid., para. 49: “The Trial Chamber is not bound by national rules of evidence – Sub-rule
89(A)”.
302
Ibid.

ber held that the Austrian procedure was in breach of the right to counsel
according to Article 18(3) ICTY Statute and therefore the statement before
the police was inadmissible at trial. 303 A similar situation occurred before
the ICTR. On 15 April 1996, the authorities of Cameroon arrested and de-
tained Barayagwiza and several other suspects on suspicion of having
committed genocide and crimes against humanity in Rwanda in 1994. 304
Barayagwiza later argued that his pre-trial detention in Cameroon was ex-
cessive and that he was not promptly informed of the charges brought
against him. This rendered his otherwise lawful arrest unlawful and consti-
tuted an obstacle to the Tribunal's personal jurisdiction on the basis of the
“abuse of process doctrine”. 305
In the ICC Statute, the inter-investigatory context was taken into ac-
count via Article 69(8): “When deciding on the relevance or admissibility
of evidence collected by a State, the Court shall not rule on the application
of the State’s national law”. The provision clarifies a rather simple insight:
that the ICC is supposed to apply its own law when deciding upon the ad-
missibility of evidence. 306 Article 69(8) is thus a concretisation of Article
10: “Nothing in this Part shall be interpreted as limiting or prejudicing in
any way existing or developing rules of international law for purposes oth-
er than this Statute”. On its face, the provision applies to Part 2 of the Stat-
ute, namely, Articles 5–21. 307 Nevertheless, the drafting process of the pro-
vision indicates that it may also apply to Articles outside Part 2. 308 And
since it includes Article 21, it certainly applies when internationally recog-
nised human rights are concerned. Even though Article 10 exists to clarify
that the Statute does not bar outside development, it cuts both ways and
also stresses the differences between the text in the Statute and other in-
struments, including national law. 309 The purpose of Article 10 appears as a
kind of reservation clause and clarifies that all articles in Part 2 are limited
303
Ibid., para. 52.
304
International Criminal Tribunal for Rwanda (‘ICTR’), Prosecutor v. Barayagwiza, Decision,
3 November 1999, ICTR-97-19-AR72, Introduction, para. 5 (‘Barayagwiza decision’)
(https://www.legal-tools.org/doc/ee7411/).
305
Ibid., Introduction, paras. 13 et seq.
306
Pitcher, 2018, p. 325, see above note 192.
307
Alexander Heinze, “Article 10”, in Kai Ambos (ed.), Rome Statute of the International
Criminal Court – A Commentary, fourth edition, C.H. Beck, Hart, Nomos, München et al.,
2021, p. 775, mn. 16.
308
Ibid., mn. 12.
309
Ibid., p. 655, mn. 16.

to the purpose of building an agreement between the States Parties and

shall have no binding effect going beyond the subject matter and the scope
of the Statute and the State Party’s agreements. 310 The Statutes for the IC-
TY and the ICTR are without a corresponding regulation.
The inter-investigatory context at the ICC played a role in the case
against Katanga and Ngudjolo: the Defence argued that one of Katanga’s
statements was taken in violation of his right to remain silent, “insofar as it
is alleged that Mr Katanga was not informed of his right to have counsel
present during the interrogation” and pointed out “that Mr Katanga had
such a right under the Statute, under existing norms of internationally rec-
ognized human rights and under the Constitution of the DRC”. 311 As a re-
sult, the Defence claimed that “the admission of the procès-verbal would
be antithetical to, and would seriously damage, the integrity of the proceed-
ings”. 312 Drawing on Article 69(7) , the Chamber emphasised “that the pro-
visions of the DRC Constitution cannot apply in the context of admissibil-
ity decisions” and that
the violation has to impact on international, as opposed to na-
tional, standards on human rights. [...] Therefore, evidence ob-
tained in breach of national procedural laws, even though
those rules may implement national standards protecting hu-
man rights, does not automatically trigger the application of
Article 69(7) of the Statute. 313
17.5.2.3.1.2. The Intra-Investigatory and Extra-Investigatory Context

Evidence collected by private individuals that enters a trial before ICTs
may involve both the intra-investigatory and the extra-investigatory con-
texts. In the former, there is a perceived attribution of the private individual
to an organ of the ICT (usually the OTP). That may occur rather openly
through the utilisation of the individual in the collection process, that is, ab
initio; or through an ex post-attribution, when the individual acted in the
310
Ibid., p. 648, mn. 6.
311
ICC, Prosecutor v. Katanga and Ngudjolo, Decision on the Prosecutor’s Bar Table Motions,
17 December 2010, ICC-01/04-01/07-2635, para. 55 (fn. omitted) (‘Katanga and Ngudjolo,
2010’) (https://www.legal-tools.org/doc/7710b6/).
312
Ibid., para. 56 (fn. omitted, emphasis in the original).
313
Ibid., para. 58 (fn. omitted).

interest of the organ. 314 In the latter, the person acts independently of a tri-
bunal organ and outside an investigation. As described at the outset of this
chapter, the extra-investigatory context is of relevance for the purpose of
the chapter. 315
17.5.2.3.1.2.1. Procedural Rules and the Extra-Investigatory Context
The particularity here lies in the lack of an investigatory context and the
ensuing lack of rules that regulate the collection of evidence in such a con-
text. But let us pause for a moment here: the lack of investigatory rules in
an extra-investigatory context is not as clear as it seems at first sight. First,
as already mentioned, 316 legislators may decide to regulate private conduct
in an extra-investigatory context. Second, the inapplicability of procedural
rules to private conduct requires an explanation. It goes to nothing less than
the question of whom procedural rules are addressed to. The source of ex-
clusionary rules can be constitutions, codes or case law, and, in the words
of Thaman and Brodowski, “can be formulated in absolute terms, strictly
requiring the exclusion of any evidence gathered in violation of ‘the law’ or
of certain constitutional or fundamental rights, or can be formulated so as
to allow judges discretion in deciding whether to admit or exclude illegally
gathered evidence”. 317 Take, for instance, § 136a(3) cl. 2 of the German
Code of Criminal Procedure (Strafprozessordnung, ‘StPO’), barring the use
of evidence obtained through prohibited methods of examination (such as
“physical interference, administration of drugs, torment, deception or hyp-
nosis”).
Already in 1952 the German Higher Regional Court (Oberland-
esgericht, ‘OLG’) of Oldenburg decided that § 136a StPO only addressed
State organs. 318 This is also the prevailing view in German legal litera-
314
German scholars want to apply exclusionary rules when the private investigation was initiat-
ed by a state organ, see Martina Matula, Private Ermittlungen, Kovac, Hamburg, 2012,
p. 101 with further references.
315
About the intra-investigatory context: P. Duff, 2004, pp. 163–164, see above note 193, with
case examples from Scotland.
316
See above Section 17.5.1.
317
Thaman and Brodowski, 2020, p. 437, see above note 196 (fn. omitted).
318
Higher Regional Court (Oberlandesgericht, ‘OLG’) Oldenburg, in Neue Juristische Wo-
chenschrift, 1953, p. 1237; Matula, 2012, p. 97, see above note 314. The German Code of
Criminal Procedure is available in the ICC Legal Tools Database (https://www.legal-
tools.org/doc/wc2l2a/).

ture. 319 Illegally obtained evidence by private individuals can generally be

admitted and is not automatically excluded. 320 The German Federal Court
of Justice (Bundesgerichtshof, ‘BGH’) confirmed this view. 321 Once a pri-
vate individual obtains evidence and hands it over to a State agency, the
Federal Court of Justice sees no reason to exclude that evidence. 322 The
Court justifies this with reference to the search for truth. 323 It does not even
suggest that the illegally obtained evidence may be treated with caution or
may have lower probative value, as the OLG of Oldenburg did. 324
The question of whom procedural rules are addressed to is crucial. If
addressed merely to State organs but not individuals, the exclusion of ille-
gally obtained evidence by private individuals is harder to justify than in
the latter case. Thus, it is at least surprising how quickly German courts
came to the conclusion that § 136a StPO is not addressed to private indi-
viduals.
17.5.2.3.1.2.2. Addressees of Procedural Rules
The question of who is addressed by a legal text is first and foremost a
question of definition. Strictly speaking, the drafters of the text determine
its addressees. Yet, laws are rarely very informative when it comes to the
addressees. In fact, they are rather vague. Thus, it is left to the addressees
themselves to determine whether they are indeed addressed by a certain law.
Unsurprisingly, attempts to determine the addressee of a law in general
terms remain controversial: from the “interested lay person” (Krüger), 325 to
the person affected by the law (Noll, probably the broadest category of ad-
319
Rainer Gundlach, “§ 136a StPO”, in Rudolf Wassermann (ed.), Kommentar zur
Strafprozessordung, Reihe Alternativkommentare, vol. 2.1, Luchterhand, Neuwied, 1992,
mn. 13; Matula, 2012, p. 100, see above note 314, with further references; Werner Leitner,
“Unternehmensinterne Ermittlungen im Konzern”, in Klaus Lüderssen et al. (eds), Fest-
schrift für Wolf Schiller: zum 65 Geburtstag am 12 Januar 2014, Nomos, Baden-Baden,
2014, p. 432.
320
Ibid., p. 97.
321
German Federal Supreme Court, Decisions in Criminal Matters, (Bundesgerichtshof, Ent-
scheidungen in Strafsachen, BGHSt), vol. 27, p. 357; vol. 34, p. 52; Matula, 2012, p. 97, see
above note 314.
322
Bundesgerichtshof (‘BGH’), in Neue Juristische Wochenschrift, 1989, p. 843 (844); Matula,
323
BGH, 1989, p. 845, see above note 322.
324
OLG Oldenburg, 1953, p. 1237, see above note 318; also OLG Celle, in Neue Juristische
Wochenschrift, 1985, p. 641.
325
Uwe Krüger, Der Adressat des Gesetzgebers, Duncker & Humblot, Berlin, 1969.

dressees) 326 to those who potentially ‘use’ the law, that is, the decision
makers (Baden), 327 the arguments are manifold. Therefore, it seems more
like a claim than a justified argument that an exclusionary rule – such as §
136a StPO – is directed at State organs. The larger issue that looms behind
the question whom exclusionary rules are addressed to is the question of
what procedural rules are (compared to rules of substantive criminal law).
Space restrictions again pose limits to an in-depth-elaboration.
17.5.2.3.1.2.2.1. The Relationship Between Procedural and Substantive
Law
Compared to substantive law, procedural law has famously been classified
as “imperative law” vis-à-vis “punitory law”, 328 “secondary rules” vis-à-vis
“primary rules” 329 or as “decision rules” vis-à-vis “conduct rules”. 330 Even
today, some reduce the function of criminal procedure to merely execute
substantive criminal law, 331 on the basis that substance was logically ante-
rior to procedure. 332 However, a clear (hierarchical) division between sub-
stantive criminal law and procedure is neither possible nor desirable in a
legal system. 333 It may even be viewed as a mere semantic distinction – not
326
Peter Noll, Gesetzgebungslehre, Rowohlt, Reinbek bei Hamburg, 1973, pp. 172 ff.
327
Eberhard Baden, Gesetzgebung und Gesetzesanwendung im Kommunikationsprozeß, Nomos,
Baden-Baden, 1977, p. 69.
328
Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, Batoche
Books, Kitchener, 2000 [1781], p. 241.
329
Herbert L.A. Hart, The Concept of Law, second edition, Clarendon Press, Oxford, 1994,
pp. 79–99.
330
Meir Dan-Cohen, “Decision Rules and Conduct Rules: On Acoustic Separation in Criminal
Law”, in Harvard Law Review, 1984, vol. 97, no. 3, pp. 625–677.
331
Karel De Meester, The Investigation Phase in International Criminal Procedure (Intersentia,
Cambridge, Antwerp, Portland, 2015, p. 100; Gunther Arzt, “Der Internationale Straf-
gerichtshof und die formelle Wahrheit”, in Jörg Arnold et al. (eds.), Festschrift für Albin
Eser, C.H. Beck, München, 2005, pp. 691–692 with further references.
332
Herbert L. Packer, “Two Models of the Criminal Process”, in University of Pennsylvania
Law Review, 1964, vol. 113, no. 1, pp. 1–69 (1, 3); Joshua Dressler, Alan C. Michaels, and
Ric Simmons, Understanding Criminal Procedure, Volume One: Investigation, third edition,
Carolina Academic Press, Durham, 2017, § 1.01.
333
In a similar vein Heike Jung, “Anmerkungen zum Verhältnis des materiellen Strafrechts
zum Strafverfahrensrecht”, in Goltdammer’s Archiv für Strafrecht, 2019, pp. 259 ff. In fact,
most legal systems “are more concerned about procedural rights than about rights to a sub-
stantive law”, George P. Fletcher, Basic Concepts of Criminal Law, Oxford University Press,
1998, p. 9.

more and not less. 334 This is especially true at the international level, where
the concept of international criminal justice is still controversial, especially
amongst the Realist school. 335 Moreover, there is not even a coherent defi-
nition of “international criminal law”, 336 which “has not evolved in a linear,
cohesive, consistent, or logical fashion” 337 and inevitably leads to an amal-
gamation of international criminal law and international criminal justice.
The retributive or deterrent effect of punishment in international criminal
law has always been dependent on the perception of international criminal
trials. 338 Another telling example of the maceration of the substance-
procedure divide at the international level is the application of the principle
of non-retroactivity (nullum crimen, nulla poena sine lege praevia) 339 to
procedural rules. While at the domestic level, this rule is usually only ap-
plied to matters of substance rather than procedure, 340 the ICC Statute ex-
334
Klaus Volk, Prozeßvoraussetzungen im Strafrecht, Verlag Rolf Gremer, Ebelsbach, 1978,
p. 4.
335
Paul Roberts, “Comparative Law for International Criminal Justice”, in David Nelken and
Esin Örücü (eds.), Comparative Law – A Handbook, Hart Publishing, Oxford and Portland,
Oregon, 2007, p. 341; Andreas Werkmeister, Straftheorien im Völkerstrafrecht, Nomos, Ba-
den-Baden, 2015, p. 31; M. Cherif Bassiouni, “The Discipline of International Criminal
Law”, in M. Cherif Bassiouni (ed.), International Criminal Law, vol. 1, third edition, Marti-
nus Nijhoff, Leiden, 2008, p. 26, all with further references.
336
Roberts, 2007, p. 342, see above note 335; Jackson and Summers, 2012, p. 112, see above
note 253.
337
Bassiouni, 2008, pp. 17–18, see above note 335.
338
Francis Biddle, In Brief Authority, Greenwood Press, Westport, 1962/1972, p. 372; Patricia
M. Wald, “Running the Trial of the Century”, Cardozo Law Review, 2005–6, vol. 27,
pp. 1559, 1574; Geoffrey Lawrence, “Nuremberg Trial”, in Guénaël Mettraux (ed.), Per-
spectives on the Nuremberg Trial, Oxford University Press, 2008, pp. 290, 292; Margaret M.
de Guzman and Timothy Kelly, “The International Criminal Court is Legitimate Enough to
Deserve Support”, in Temple International and Comparative Law Journal, 2019, vol. 33,
p. 402.
339
Claus Roxin and Luis Greco, Strafrecht Allgemeiner Teil, vol. 1, fifth edition, C.H. Beck,
München, 2020, § 5 mn. 10.
340
Bruce Broomhall, “Article 51”, in Kai Ambos (ed.), Rome Statute of the ICC – A Commen-
tary, fourth edition, C.H. Beck, Hart, Nomos, München et al., 2021, pp. 1592–1613, mn. 33;
Alexander Heinze, “Tor zu einer anderen Welt”, in Bock et al. (eds), Strafrecht als interdis-
ziplinäre Wissenschaft (Nomos, Baden-Baden, 2015, p. 199 with further references. A retro-
active application of procedural rules is usually nevertheless prohibited through the rule of
law, see ibid. pp. 199–200.

plicitly 341 prohibits the retroactive application of amendments to the Rules

of Procedure and Evidence (‘RPE’). 342
That being said, the traditional separation between substantive and
procedural law (and the ensuing question of whom they are addressed to) is
particularly fruitless in the face of exclusionary rules. Malcai and Levine-
Schnur made this point very well: “The court’s decision on a procedural
question may be necessary as a logical requirement for the adjudication of
the substantive issue. For example, it will never be the case that a court will
announce the verdict first and then rule on the (in)admissibility of evidence
on which the verdict relies”. 343 This is an argument Schreiber already made
in 1968: procedural rules, especially rules of evidence, have a considerable
impact on the substantive issue of punishment. 344 And yet, inadmissibility
due to a violation of a person’s rights might still be ignored, since it is mor-
ally justified not to acquit the defendant. 345 It touches upon the balancing
exercise many courts in the world carry out between the severity of the
rights violation and the alleged crime the accused is charged with. 346 It also
hints at the integrity and morality of a judgment as described above; 347 and
341
ICC Statute, Article 51(4), see above note 182. In the same vein, but less explicit, see ICTY,
Rules of Procedure and Evidence, 8 July 2015, IT/32/Rev.50, Rule 6(D) (‘ICTY RPE’)
(https://www.legal-tools.org/doc/30df50/); ICTR, Rules of Procedure and Evidence, 13 May
2015, Rule 6(c) (‘ICTR RPE’) (https://www.legal-tools.org/doc/c6a7c6/) and Special Tribu-
nal for Lebanon (‘STL’), Rules of Procedure and Evidence, 20 March 2009, Rule 5(H)
(‘STL RPE’) (https://www.legal-tools.org/doc/3773bf/). See, generally, Philipp Ambach,
“The ‘Lessons Learnt’ process at the ICC – a suitable vehicle for procedural improve-
ments?”, in Zeitschrift für Internationale Strafrechtsdogmatik, 2016, vol. 11, p. 855.
342
Albeit with the qualification “to the detriment of the person who is being investigated or
prosecuted or who has been convicted” (ICC Statute, Article 51(4), see above note 182),
which allows the retroactive application of amendments to the RPE in exceptional cases, as
it has been passionately discussed in the context of the application of the amended Rule 68,
ICC RPE (“Prior recorded testimony”) in the case against Ruto and Sang before the ICC, see
in more detail Kai Ambos, Treatise on International Criminal Law: Volume III: Internation-
al Criminal Procedure, Oxford University Press, 2016, pp. 497–499.
343
Ofer Malcai and Ronit Levine-Schnur, “When Procedure Takes Priority: A Theoretical
Evaluation of the Contemporary Trends in Criminal Procedure and Evidence Law”, in Ca-
nadian Journal of Law and Jurisprudence, 2017, vol. 30, no. 1, p. 194.
344
Hans-Ludwig Schreiber, “Die Zulässigkeit der rückwirkenden Verlängerung von Verjäh-
rungsfristen früher begangener Delikte”, in Zeitschrift für die gesamte Strafrechtswissen-
schaft, 1968, vol. 80, p. 366; see also Volk, 1978, p. 56, see above note 334.
345
Malcai and Levine-Schnur, 2017, p. 201, see above note 343.
346
Campbell, Ashworth, and Redmayne, 2019, pp. 42 ff., see above note 107.
347
See above Section 17.5.2.2.3.1.

the remedy theory. 348 Malcai and Levine-Schnur call this the “ex-post and
ex-ante perspectives” of “substance-procedure dilemmas”, which is in the
case of exclusionary rules: “creating significant incentives to avoid the vio-
lation of rights without making the substantive outcome of trial strictly
conditional on the legality or constitutionality of the (probative) evidence”.
German courts have addressed this dilemma by embracing it and
drawing (or, at least, attempting to draw) a clear line between procedure
and substance. In that line, the main reason for a rejection of any exclu-
sionary rule in the case of private acts is a plain reference to the fact that
private individuals who act illegally against other persons commit
crimes. 349 Thus, there would be no need for other means of sanctions. This
argument, however, cannot be transferred to the situation at hand, namely
private individuals, non-official investigations, and the international con-
text. First, because the international or transnational context makes the
identification of the respective criminal offense considerably difficult. Se-
cond, and more importantly, what this view lays bare is the premise – prob-
ably influenced by German dogmatic – of a clear distinction between sub-
stantive and procedural law. 350 In reality, the argument goes like this: we
have a sanction from substantive law, why apply a procedural one? This
distinction, however, is not only domestically controversial, but even more
at the international level, as I have shown.
17.5.2.3.1.2.2.2. Exclusionary Rules: Conduct Rules, Decision Rules or
Both?
A conceptual visualisation of these dilemmas is provided by Meir Dan-
Cohen’s (albeit controversial) 351 distinction between “decision rules” vis-à-
vis “conduct rules”. Drawing on previous dichotomies (or, less strictly, dis-
tinctions), for Dan-Cohen there are laws addressed to the general public –
the citizens – that are designed to shape people’s behaviour (conduct con-
trol) and laws that are addressed to officials that provide guidelines for
348
349
Matula, 2012, p. 150, see above note 314, with further references.
350
In that vein, see Theodor Kleinknecht, “Die Beweisverbote im Strafprozeß”, in Neue Juristi-
sche Wochenschrift, 1966, p. 1542.
351
See the critical comments of Kyron Huigens, Samuel W. Buell, Anne M. Coughlin, Luís
Duarte d’Almeida, Adil Ahmad Hague, Eric J. Miller and Malcolm Thorburn, in Paul H.
Robinson, Stephen P. Garvey and Kimberly Kessler Ferzan (eds.), Criminal Law Conversa-
tions, Oxford University Press, 2009, pp. 12 ff.

their decisions. The former, imply instructing the public about the required
conduct and by issuing threats to secure compliance. The latter are made
‘with respect’ to members of the general public. They are designed to au-
thorise, constrain, or otherwise guide officials in the wielding of the State’s
power (“power control”). Dan-Cohen emphasises that “communicating to
legally trained officials suggests a different style than communicating to
the legally untutored general public”. Thus, the guidelines “may be en-
hanced by the use of a technical, esoteric terminology that is incomprehen-
sible to the public at large”.
Taking these characteristics of decision rules together, on its face,
rules of procedure and evidence fall into the category of decision rules, “on
the grounds that they concern the basis for the legal conduct of trials as in-
terpreted by judges and lawyers”. 352 If this were the case, procedural rules
would not be addressed to private individuals. Yet, this general observation
might be ill-suited for exclusionary rules, since those do regulate conduct.
The question is whether exclusionary rules are addressed to public officials,
regardless of their conduct regulation – in that case, they are decision rules,
or whether they regulate a conduct, regardless of their nature as procedural
rules that generally address public officials – in that case, they are conduct
rules. To be fair, upon application of Dan-Cohen’s theoretical model, the
characteristics of exclusionary rules overwhelmingly seem to point in the
direction of decision rules. Yet, Dan-Cohen himself admits that his dichot-
omy is theoretical, and unfolds in a more nuanced fashion in the ‘real
world’. Thus, the question of whether exclusionary rules are conduct rules
or decision rules might not have a clear answer after all. As Dan-Cohen
puts it: “Any given rule may be a conduct rule, a decision rule, or both. The
mere linguistic form in which a legal rule is cast does not determine the
category to which it belongs”. 353
A central element for the differing appearance of both conduct rules
and decision rules is what Dan-Cohen calls “acoustic separation”, which –
at least theoretically – “ensures that conduct rules cannot, as such, affect
decisions; similarly, decision rules cannot, as such, influence conduct”. 354
This is different in the real world:
352
353
Meir Dan-Cohen, “Decision Rules and Conduct Rules – On Acoustic Separation in Criminal
Law”, in Paul H. Robinson, Stephen P. Garvey, Kimberly Kessler Ferzan (eds.), Criminal
Law Conversations, Oxford University Press, 2009, p. 4.
354
Ibid., p. 4.

Here, officials are aware of the system’s conduct rules and

may take them into account in making decisions, and individ-
uals may consider decision rules in shaping their conduct. Re-
al-world decision rules are accordingly likely to have conduct
side effects, and real-world conduct rules are likely to have
decisional side effects. 355
This is true with (real world) exclusionary rules: they are addressed
to the courts as guidelines for decision making, and to the person conduct-
ing – for instance – the interview, to prescribe a certain behaviour. Whether
this person must be a public official, still remains unanswered. Applying
Dan-Cohen’s model, Malcai and Levine-Schnur decide affirmatively. 356 Yet,
to follow from the design of a rule (technical, power control, and so on)
and the relationship among rules (acoustic separation) to an addressee
seems to put the cart before the horse. It is presumably also not what Dan-
Cohen envisaged. In fact, he himself acknowledged the difficulty to apply
his model in reality (or “the real world”, as he expressed it):
Societies differ in their degree of acoustic separation. But just
as we would be hard pressed to locate a society displaying
complete acoustic separation, we would find it equally diffi-
cult to identify a society in which such separation was wholly
absent. We are also likely to discover that, within any given
society, the degree of acoustic separation varies with respect
to different groups of the population and different issues. 357
It is especially true at the international level. As I have illustrated
elsewhere, 358 though applying the law, a procedural question before the
ICC can be decided differently by different Chambers. The reason for this
phenomenon is that the drafters of the ICC Statute relied on the “construc-
tive ambiguity” of legal texts. 359 In the words of Safferling: “A procedural
system, which is so complex that the rules could be interpreted in a purely
positivistic way, does not exist at the international level”. 360 Since the ICC
Statute leaves room for interpretation, it apparently has become en vogue to
355
Ibid.
356
Malcai and Levine-Schnur, 2017, p. 201 with fn. 55, see above note 343.
357
Dan-Cohen, 1984, pp. 634–635, see above note 330.
358
Heinze, 2014, pp. 34 ff., see above note 110.
359
Christoph Safferling, International Criminal Procedure, Oxford University Press, 2012,
p. 112.
360
Ibid.

decide procedural matters on a so-called case-by-case basis. 361 The ICC

OTP, in particular, seems to accommodate such an approach. 362 In its poli-
cy paper on the interests of justice of September 2007, it declares that the
paper’s scope would only “offer limited clarification in the abstract” as “the
particular approach then will necessarily have to depend on the facts and
circumstances of the case or situation”. 363 Thus, international criminal pro-
cedure at the ICC highly depends on the persons involved. 364 As I have il-
lustrated, the composition of the chamber can play an important role in de-
termining how the Statute and the Rules are interpreted. 365 Issues arising in
different chambers may be resolved in slightly different ways. 366 That the
creation of international procedural law very often lies in the hands of in-
ternational judges might indicate that it is composed of decision rules, ad-
dressed to public officials, that is, the judges themselves. As a matter of
fact, governments prefer to leave judges to determine for themselves how
the court will operate. 367
Thus, the classification of exclusionary rules as decision rules does
not exclude the possibility that they are also conduct rules that are only ad-
dressed both to public officials and citizens. This is what Duff et al. real-
ised, too, when they point out that the categorisation of procedural rules as
decision rules
361
In the same vein, see Swoboda, Verfahrens- und Beweisstrategien, Nomos, Baden-Baden,
2013, p. 203, seeing no alternative to a case-by-case approach.
362
Safferling, 2012, p. 110, see above note 359.
363
ICC OTP, Policy Paper on the Interests of Justice, 1 September 2007, p. 7, fn. 9 (https://
www.legal-tools.org/doc/bb02e5/).
364
Safferling, 2012, p. 111, see above note 359.
365
Kristina D. Rutledge, “Spoiling Everything – But for Whom? Rules of Evidence and Inter-
national Criminal Proceedings”, in Regent University Law Review, 2003-2004, vol. 16, no. 1,
pp. 151–189 (162–163).
366
Robert Christensen, “Getting to Peace by Reconciling Notions of Justice: The Importance of
Considering Discrepancies Between Civil and Common Legal Systems in the Formation of
the International Criminal Court”, in UCLA Journal of International Law and Foreign Af-
fairs, 2001-2002, vol. 6, p. 414.
367
Daniel Terris, Cesare P.R. Romano, Leigh Swigart, The International Judge, Oxford Univer-
sity Press, Oxford, 2007, pp. 104–105. See, for instance, the “Judge-Legislator” model
known from the ad hoc Tribunals, see Fabricio Guariglia, “The Rules of Procedure and Evi-
dence for the International Criminal Court: A New Development in International Adjudica-
tion of Individual Criminal Responsibility”, in Antonio Cassese, Paola Gaeta and John
R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court; A Commentary,
vol. II, Oxford University Press, 2002, p. 1116.

does not imply, however, that such rules need not be compre-
hensible to citizens; indeed, the comprehensibility of the pro-
ceedings is still a precondition of a just public trial. If the trial
is to address citizens in legal and moral terms which they can
understand, the rules for courts must also be rules for citizens,
in that they must be articulated in a way that connects appro-
priately with the ethical language of participants in the trial. 368
Methodically, Duff et al. evade a by-effect of the application of Dan-
Cohen’s models: to miss the forest for the trees. It is so tempting to dive
into the theoretical characteristics of decision rules and conduct rules that it
is very easy to lose sight of what procedural law is really about: to regulate
conduct during the proceedings and a trial respectively. The question of
whom procedural rules are addressed to cannot therefore be answered with-
out the question of what procedural rules are concerned with. It is uncon-
vincing to rely on a principle according to which “the legal process should
signify its insistence that those who enforce the law should also obey the
law”. 369 The argumentum a contrario that those who do not enforce the law
are not obliged to obey the law demonstrates the fallacy of the principle,
and calls for a holistic view on the addressee-issue.
17.5.2.3.1.2.2.3. The Holistic View: The Criminal Process as a System
This holistic view on the addressee-issue has roots in Luhmann’s systems
theory, which has a threefold effect. First, procedural law does not just de-
lineate a bipolar relationship between the law and its addressees, but is a
system. Especially the late Luhmann promoted the idea of sociological sys-
tems, where communication is a central feature. 370 Luhmann relied on the-
ories of systems, as they had developed within biology and cybernetics.
Law, within this theory, is one of society’s sub-systems. 371 Teubner has tak-
en this further, drawing on Luhmann’s version of systems theory, to the
368
369
Per Lord Griffiths in UK HL, R v. Horseferry Road Magistrates’ Court, ex parte Bennett,
[1994] 1 AC 42; Ashworth, 2002, p. 318, see above note 184.
370
Niklas Luhmann, Einführung in die Systemtheorie, Dirk Baecker (ed.), fourth edition, Carl-
Auer, Heidelberg, 2008, pp. 100 ff.; Richard Nobles, and David Schiff, “Taking the Com-
plexity of Complex Systems Seriously”, in The Modern Law Review, 2019, Advance Article,
p. 2.
371
Ibid.; Dietmar Braun, “Rationalisierungskonzepte in der Systemtheorie Niklas Luhmanns
und in der Handlungstheorie Hartmut Essers: Ein Theorienvergleich”, in Rainer Greshoff
and Uwe Schimank (eds.), Integrative Sozialtheorie? Esser – Luhmann – Weber, VS Verlag,
Wiesbaden, 2006, p. 377 with fn. 13.

autopoietic systems theory to observe a wide range of linked legal or po-

tentially legal issues, such as juridification, pluralism, transnational law,
justice, the role of law in inter-social sub-system conflict, among others. 372
Applying Luhmann’s systems theory, laws are not so much addressed to
individuals but to closed systems – systems that cannot be influenced but
merely motivated by external factors. 373 According to Luhmann, “the social
system consists of meaningful communications— only of communications,
and of all communications”, 374 and “the legal system, too, consists only of
communicative actions which engender legal consequences”. 375 Under-
stood this way, the addressees of exclusionary rules are not so much either
public officials or private citizens, or both, but are all those who factually
conducts an investigation.
The procedural, investigatory context is the closed system. At the
same time, the criminal process is part of the (broader) criminal justice sys-
tem. 376 Luhmann also admitted that there are communications that trans-
gress a closed system. 377 Hamel has taken this point further and demon-
strated that the judgment, as a form of speech act, is the autopoietic opera-
tion of the system criminal justice that – through its effects, especially the
res iudicata – communicates to society and thereby transgresses the closed
system. 378 This is nothing less than the connection between a judgment of a
criminal court and the expressive or communicative effects of punishment.
Concretely, a judgment that is based on illegally obtained evidence, and has
therefore a questionable moral authority, might also have an impact on the
372
See, for example, Gunther Teubner, “Altera pars audiatur: Law in the Collision of Discours-
es”, in Richard Rawlings (ed.), Law, Society and Economy, Oxford University Press (Clar-
endon Press), Oxford, 1997, chap. 7.
373
Niklas Luhmann, Das Recht der Gesellschaft, Suhrkamp, Frankfurt am Main, 1993-1997,
p. 43; Theresa F. Schweiger, Prozedurales Strafrecht: Zur Bedeutung von Verfahren und
Form im Strafrecht, Studien zum Strafrecht, vol. 91, Nomos, Baden-Baden, 2018, p. 113.
374
Gunther Teubner, “Evolution of Autopoietic Law”, in Gunther Teubner (ed.), Autopoietic
Law: A New Approach to Law and Society, Walter de Gruyter, Berlin and New York, 1988,
p. 17.
375
Ibid., p. 18; Mark van Hoecke, Law as Communication, Hart, Oxford and Portland, 2012,
p. 117.
376
Campbell, Ashworth, and Redmayne, 2019, pp. 2, 11-12, see above note 107; Heinze, 2014,
pp. 114 ff., see above note 110; Alexander Heinze, “Bridge over Troubled Water – A Seman-
tic Approach to Purposes and Goals in International Criminal Justice”, in International
Criminal Law Review, 2018, vol. 18, no. 6, p. 937.
377
Luhmann, 1993-1997, p. 34, see above note 373.
378
Roman Hamel, Strafen als Sprechakt, Duncker & Humblot, Berlin, 2009, pp. 81–82.

expressive function of punishment. I will get back to this a little later, since
this connection becomes vital in international criminal law.
When taking the procedural system and the investigatory process as a
closed system, 379 where everyone is addressed by the relevant rules, the
next step would be to determine the parameters of such a system. I have
done this elsewhere, not only with regard to national systems of criminal
procedure 380 but, especially, with a view to international criminal procedure.
Thus, I will limit myself to some brief remarks. The relevant attempts to
model a procedural system can generally be divided into descriptive and
normative models, although not all of them fit into this distinction and
many of them seem to have an overlap between a rather descriptive or
normative take. 381 The most prominent example of the descriptive model
are Packer’s Crime Control and Due Process Models. Packer’s bifurcated
approach focuses, on the one hand, on the efficient suppression of crime
and, on the other, on fair trial rights and the concept of limited governmen-
tal power. 382 While under “crime control” speed, efficiency and finality are
the overriding values, and any rule or measure compromising such values
is deemed inappropriate, 383 “due process” aims at the protection of the
“most disadvantaged” and thus demands equal treatment regardless of
wealth or social status. 384 Under Packer’s crime control model, the authori-
ty of the criminal justice system is derived from the laws passed by legisla-
tures, whereas under his due process model authority is derived from the
Supreme Court.
379
About procedural law (more concretely, evidence law) as a system, see Roberts and Zuck-
erman, 2010, chap. 1 and p. 188, see above note 192.
380
381
In more detail, see ibid., pp. 133 ff.
382
Herbert L. Packer, The Limits of the Criminal Sanction, Stanford University Press/Oxford
University Press, Stanford, California and Oxford, 1969, pp. 149–53; see also the accounts
of Yvonne McDermott, Fairness in International Criminal Trials, Oxford University Press,
Oxford, 2016, pp. 9–10; Katja Šugman Stubbs, “An Increasingly Blurred Division between
Criminal and Administrative Law”, in Bruce Ackerman, Kai Ambos, and Hrvoje Sikirić
(eds.), Visions of Justice – Liber Amicorum Mirjan Damaška, Duncker & Humblot, Berlin,
2016, pp. 351–370, 353; Campbell, Ashworth, and Redmayne, 2019, pp. 39 ff., see above
note 107.
383
Cf. Heinze, 2014, p. 134, see above note 110.
384
See Packer, 1969, p. 168, see above note 382.

17.5.2.3.1.2.2.3.1. Parameters of the Criminal Process System: Crime

Control
It would be within the spirit of Packer’s Crime Control Model to admit il-
legally obtained evidence by private individuals and not apply exclusionary
rules. In fact, the model would even admit illegally obtained evidence by
public officials. In Packer’s words:
In theory the Crime Control Model can tolerate rules that for-
bid illegal arrests, unreasonable searches, coercive interroga-
tions, and the like. What it cannot tolerate is the vindication of
those rules in the criminal process itself through the exclusion
of evidence illegally obtained or through the reversal of con-
victions in cases where the criminal process has breached the
rules laid down for its observance. 385
Moreover, according to this model, illegally seized evidence should also be
admissible at trial. Unlike coerced confessions, guns, drugs and stolen
property reveal the truth regardless of how the police obtained them. 386
Under Packer’s Crime Control Model, the authority of the criminal
justice system is derived from the laws passed by legislatures. 387 This legis-
lature, as opposed to the courts, is the model’s “validating authority”. A
criminal sanction is suggested to be “a positive guarantor of social free-
dom” and necessary for the maintenance of “public order”. 388 In the Crime
Control Model, the police have an important role. They are concerned with
“factual guilt” in the sense that the accused probably committed the crimi-
nal act, 389 and carry out most of the fact-finding. 390 Because it treasures
“speed and finality”, 391 the Crime Control Model allows the police and
prosecutors to screen out the innocent and secure “as expeditiously as pos-
385
Ibid., pp. 167–168.
386
Ibid., p. 199.
387
Ibid., p. 173.
388
Ibid., p. 158.
389
As opposed to “legal guilt” that could be established beyond a reasonable doubt through
admissible evidence and after considering all the rights and defences of the accused.
390
But see Peter L. Arenella, “Rethinking the Functions of Criminal Procedure: The Warren
and Burger Courts’ Competing Ideologies”, in Georgetown Law Journal, 1983, vol. 72, no.
2, pp. 185–248.
391
Packer, 1969, p. 159, see above note 382.

sible, the conviction of the rest, with a minimum of occasions for challenge,
let alone post-audit”. 392
It is important to clarify that Packer’s Crime Control Model in no
sense authorises broad police abuse, as some authors assert. 393 It is quite
the opposite: Packer’s Crime Control model even imposes ordinary law for
State officials in line with Dicey’s idea of the rule of law. 394 However, it is
fair to say that what the model most fears is a criminal going free just be-
cause of (procedural) mistakes done by the police. 395
17.5.2.3.1.2.2.3.2. Parameters of the System Criminal Process:
Due Process
The Due Process Model, by contrast, is not concerned with “factual guilt”
but with “legal guilt”. 396 This seems to touch upon different understandings
of fairness, on which I will elaborate in the next section. The Due Process
Model aims at the protection of the “most disadvantaged” and thus de-
mands equal treatment regardless of wealth or social status. 397 It places
much less emphasis on efficiency and guilty pleas than the Crime Control
Model and strives to avoid police abuses. 398 Procedural rights like the right
to remain silent and the right to contact counsel are seen as most im-
portant. 399 Unlike the Crime Control Model, the Due Process Model does
not allow separate civil, disciplinary, or criminal actions in cases of prose-
cutorial or police abuses. 400 Therefore, the model provides for “prophylac-
tic and deterrent” 401 exclusionary rules because much police abuse will
392
Ibid., p. 160.
393
Kent Roach, “Four Models of the Criminal Process”, in Journal of Criminal Law & Crimi-
nology, 1999, vol. 89, no. 2, pp. 671–716.
394
Cf. Dicey, 1886 and 1979, pp. 188 ff., see above note 256.
395
United States, New York Court of Appeals, People v. Defore, 12 January 1926, 150 N.E. 585,
587.
396
Packer, 1969, p. 167, see above note 382.
397
Ibid., p. 168.
398
Ibid., p. 180.
399
Ibid., p. 191: “The rationale of exclusion is not that the confession is untrustworthy, but that
it is at odds with the postulates of an accusatory system of criminal justice in which it is up
to the state to make its case against a defendant without forcing him to co-operate in the
process, and without capitalizing on his ignorance of his legal rights”.
400
Ibid., p. 180. About disciplinary sanctions with respect to disclosure failures, see Heinze,
2014, pp. 421 ff., above note 110.
401
Ibid., p. 168.

never reach the stage of a criminal trial. 402 Under the Crime Control Model,
anything that exhausts resources must be avoided, that is, a criminal trial.
This can be done through guilty pleas and plea-bargaining arrangements.
The opposite is the case in the Due Process Model. A criminal trial “should
be viewed not as an undesirable burden but rather as the logical and proper
culmination of the process”. 403 Thus, guilty pleas are not encouraged; 404 the
criminal trial – conceivably based on Luhmann 405 – has an intrinsic value
and is detached from substantive law. 406 The Luhmannesque notion of a
trial (and of proceedings) renders it possible that within the confines of the
Due Process Model, exclusionary rules also apply when evidence was ille-
gally obtained by private individuals.
Packer’s categorisation served as a basis for further elaborations, for
example, taking into account rehabilitation and societal stability, 407 focus-
ing on cases that never reach the courtroom, 408 emphasising more strongly
the protection of innocents, 409 and the interests of victims. 410 Damaška, in
402
Ibid., p. 180.
403
Ibid., p. 224.
404
Ibid.
405
Niklas Luhmann, Legitimation durch Verfahren, Suhrkamp, Frankfurt a. M., 1983 [first edi-
tion published by Hermann Luchterhand Verlag in 1969], pp. 30–31 (“Verfahren finden eine
Art generelle Anerkennung, die unabhängig ist vom Befriedigungswert der einzelnen Ent-
scheidung, und diese Anerkennung zieht die Hinnahme und Beachtung verbindlicher Ent-
scheidungen nach sich”); see also Gerson Trüg, “Die Position des Opfers im Völkerstrafver-
fahren vor dem IStGH – Ein Beitrag zu einer opferbezogenen verfahrenstheoretischen Be-
standsaufnahme”, in Zeitschrift für die gesamte Strafrechtswissenschaft, 2013, vol. 125, no.
1, p. 78.
406
See Packer, 1969, p. 217, sees above note 382 (“Many of the limitations on substantive
criminal enactments safeguard us against being punished for a mere propensity to commit
crime”).
407
John Griffiths, “Ideology in Criminal Procedure or A Third ‘Model’ of the Criminal Process”,
in Yale Law Journal, 1969-1970, vol. 79, no. 3, pp. 359–417.
408
Satnam Choongh, “Policing the Dross – A Social Disciplinary Model of Policing”, in British
Journal of Criminology, 1998, vol. 38, no. 4, p. 625.
409
Keith A. Findley, “Toward a New Paradigm of Criminal Justice: How the Innocence Move-
ment Merges Crime Control and Due Process”, in Texas Tech Law Review, 2008-2009, vol.
41, pp. 141 ff.
410
Kent Roach, 1999, p. 672, see above note 393; Hadar Aviram, “Packer in Context: Formal-
ism and Fairness in the Due Process Model”, in Law and Social Inquiry, 2011, vol. 36, no. 1,
p. 241. See also Trüg, 2013, p. 79, see above note 405, who however neglects existing pro-
cedural models which take the role of the victim into consideration. See, generally, Ambos,

his seminal The Faces of Justice, 411 developed a set of models based on
attitudes towards State authority and on concepts of government. 412 It goes
beyond the scope of this chapter to also apply those to the question of ex-
clusionary rules.
17.5.2.3.1.3. Intermediate Conclusion
There are different investigatory contexts when private individuals collect
evidence that eventually may be used before an ICT. The inter-
investigatory context (international investigation – domestic investigation);
the intra-investigatory context (internal investigation by a private individu-
al); and the extra-investigatory context (collection of evidence by a private
individual outside any investigation). I raised the question whether the pro-
cedural regime, especially exclusionary rules, maybe applicable in the in-
ter-investigatory, intra-investigatory and extra-investigatory contexts. The
inter-investigatory context turned out to be the least problematic. In the in-
tra-investigatory context, there is an attribution of the private individual to
an organ of the ICT (usually, the OTP) that may occur rather openly
through a utilisation of the individual in the collection process, that is, ab
initio; or through an ex post attribution, when the individual acted in the
interest of the organ. In the latter, a person acts independently of an ICT-
organ and outside an investigation. It is the extra-investigatory context that
is the neuralgic point of exclusionary rules applied before ICTs. This sec-
tion was merely concerned with the admittedly rather simple question of
whether exclusionary rules apply in this setting. As I have demonstrated,
the allegedly simple question unfolded into an analysis that entered the
depth of procedural law theory. Through norm theory (Dan-Cohen) and
systems theory (Luhmann and Teubner), combined with procedural theory
(Packer), I have laid bare a wide-ranging controversy about the addressees
of procedural rules. I conclude that a bipolar legislator-addressee relation-
ship is fruitless. Instead, the addressee of procedural law is the process as a
411
“[A] key work in the field of comparative procedure”, Steven G. Calabresi, “The Compara-
tive Constitutional Law Scholarship of Professor Mirjan Damaška: A Tribute”, in Bruce
Ackerman, Kai Ambos, and Hrvoje Sikirić (eds.), Visions of Justice – Liber Amicorum Mir-
jan Damaška, Duncker & Humblot, Berlin, 2016, p. 107.
412
Mirjan Damaška, The Faces of Justice and State Authority, Yale University Press, New Ha-
ven and London, 1986, pp. 8–12. For a comprehensive overview of the reviews of this book
see Izhak Englard, “The Faces of Justice and State Authority: A Review of the Reviews”, in
Bruce Ackerman, Kai Ambos, and Hrvoje Sikirić (eds.), Visions of Justice – Liber Amicorum
Mirjan Damaška, Duncker & Humblot, Berlin, 2016, pp. 199–211.

system. Rules apply to everyone within that system – and might even apply
beyond that system through transgressive communication (just as the
judgment communicates not only with the accused and victim but with so-
ciety as a whole). Even when we divide the procedural law into a Crime
Control and Due Process function, with the former addressing the police
and prosecution, the latter applies to everyone that is involved in the inves-
tigatory process when this involvement eventually has an impact on due
process. Understood this way, the exclusionary rules also apply to private
conduct.
17.5.2.3.2. Rationales for the Exclusion of Illegally Obtained Evidence
Before International Criminal Tribunals in the Face of
Private Conduct
Due to the controversy around the application of exclusionary rules to the
extra-investigatory context, the rationales for exclusionary rules again be-
come the focus of attention – on its face because of the theoretical gap left
by the controversy concerning the application of exclusionary rules. It is
worth mentioning that this gap is larger in the civil law tradition than in the
common law tradition. In the former, the application of legal principles is
normally derived from or based on written law. 413 Thus, the exclusion of
evidence must be based on written exclusionary rules. The generality of
legal rules is high—codes in the civil law tradition are said to be rather a
collection of abstract principles than specific rules for particular situations
or even concrete cases. 414 Unsurprisingly, in Germany, most recent works
about the exclusion of illegally obtained evidence by private individuals
413
Brianne McGonigle Leyh, Procedural Justice? Victim Participation in International Crimi-
nal Proceedings, Intersentia, Cambridge et al., 2011, p. 70; Michael Bohlander, “Language,
Culture, Legal Traditions, and International Criminal Justice”, in Journal of International
Criminal Justice, 2014, vol. 12, no. 3, pp. 494 ff.; on the importance of truth-seeking, see,
for example, Michèle-Laure Rassat, Traité de procedure pénale, Presses Univ. de France,
Paris, 2001, p. 297; Frédéric Desportes and Laurence Lazerges-Cousquer, Traité de
procédure pénale, fourth edition, Economica, Paris, 2016, mn. 550; Hans-Heiner Kühne,
Strafprozessrecht, ninth edition, C.F. Müller, Heidelberg, 2015, mn. 1, 628, 751; Peters,
1985, pp. 16, 82–83, see above note 113.
414
Joseph Sanders, “Law and Legal Systems”, in Edgar F. Borgatta and Rhonda J.V. Montgom-
ery (eds.), Encyclopedia of Sociology, vol. III, second edition, Macmillan, New York et al.,
2000, pp. 1544, 1546; Heinze, 2014, p. 109, see above note 110. For a German perspective,
see Michael Bohlander, “Radbruch Redux: The Need for Revisiting the Conversation be-
tween Common and Civil Law at Root Level at the Example of International Criminal Jus-
tice”, in Leiden Journal of International Law, 2011, vol. 24, no. 2, pp. 393–410, 402.

revolve around the question whether § 136a StPO, as written law, is appli-
cable 415 – and not so much about what could be the rationale for excluding
or admitting such evidence. While the civil law tradition emphasises codi-
fication, the chief source 416 of law in common law legal systems is the case
law of the courts. 417 Procedural rules are especially set forth in the case law
in a direct (or indirect) application of the constitution (if there is one). 418 As
a result, the rationales for exclusionary rules have a much more prominent
position in common law than in civil law. Yet, here too, the temptation is
high to deny those rationales practical relevance, since they do not allow
for a mechanical application of exclusionary rules. Roberts and Zuckerman
made a similar observation and expressed it more eloquently:
the impact of foundational principles on the day-to-day prac-
tice of the courts has been blunted by common lawyers’ ex-
cessive preoccupation with technical legal definitions. The
traditional textbook treatment of the Law of Evidence may al-
lude to the rationale underpinning particular rules, but discus-
sion then tends to proceed as though it can be assumed that
the rules are either self-actuating, internally coherent, and ex-
415
See, for example, Sebastian Eckhardt, Private Ermittlungsbeiträge im Rahmen der staatli-
chen Strafverfolgung, Peter Lang, Frankfurt a.M. et al., 2009, pp. 14 ff.; Anja Bienert, Pri-
vate Ermittlungen und ihre Bedeutung auf dem Gebiet der Beweisverwertungsverbote, Sha-
ker, Aachen, 1997, pp. 11 ff.
416
Many observers from the civil law system still ignore that the common law in the respective
legal system has often been replaced by statutory law, see, in the same vein, Massimo
Donini, “An impossible exchange? Versuche zu einem Dialog zwischen civil lawyers und
common lawyers über Gesetzlichkeit, Moral und Straftheorie”, in Jahrbuch der Juristischen
Zeitgeschichte, 2017, vol. 18, no. 1, p. 342. See also Geoffrey Samuel, A Short Introduction
to Judging and to Legal Reasoning, Edward Elgar, Celtenham, Northampton, MA, 2016,
p. 31: “The common law has of course traditionally been regarded as being based upon cas-
es and precedents. Before the 19th century this was largely true, but today the position is
dramatically different. By far the most important source of law in England is legislation and
the great majority of cases decided by the courts involve the interpretation and application of
a legislative text”; Carissa Byrne Hessick, “The Myth of Common Law Crimes”, in Virginia
Law Review, 2019, vol. 105, no. 5, pp. 965–1024.
417
Michael Zander, “Forms and Functions of the Sources of the Law from a Common Law
Perspective”, in Albin Eser and Christiane Rabenstein (eds.), Neighbours in Law – Are
Common Law and Civil Law Moving Closer Together?, Papers in Honour of Barbara Hu-
ber on her 65th Birthday, Edition iuscrim, Freiburg i. Br., 2001, pp. 32, 43; Heinze, 2014,
418
David Alan Sklansky, “Quasi-Affirmative Rights in Constitutional Criminal Procedure”, in
Virginia Law Review, 2002, vol. 88, no. 6, pp. 1229–1300; Jerold H. Israel and Wayne R.
LaFave, Criminal Procedure, seventh edition, Thomson West, St. Paul, Minnesota, 2006,
pp. 3 ff.; Matthew Lippman, Criminal Procedure, second edition, Sage, London, 2014, p. 5.

haustive, or else inexplicably self-contradictory. No further

reference to deeper rationalization or justification is thought
necessary. 419
This argument, that builds on the flawed premise that individual de-
cisions can only be derived from rules, 420 ignores that judges have discre-
tion 421 and that “criminal evidence is developing into a branch of constitu-
tional criminal jurisprudence”. 422
17.5.2.3.2.1. Integrity from the Subject Perspective: The Deterrence
Theory Within the Extra-Investigatory Context
As described in detail, the deterrence theory assigns to exclusionary rules a
deterrent effect on future behaviour of the person collecting evidence.
Apart from the theoretical doubts that are voiced as to the justification of
such a deterrence theory, it is even more questionable whether this theory
may have any effect in the extra-investigatory context. Before going into
the four arguments against the utility of the deterrence theory in the extra-
investigatory context, however, one popular argument needs to be refuted
ab initio: “If the exclusionary discretion is based on a disciplinary rationale,
there is no reason for not admitting this evidence [that is, evidence a civil-
ian obtained]. The authorities have done nothing wrong and the public in-
terest in admitting the evidence may be very great”. 423 The remark that ‘au-
thorities have done nothing wrong’ in cases when private individuals ille-
gally obtained evidence somehow insinuates that exclusionary rules are
exclusively addressed to those authorities. Any argument that goes like this
carries the requirement to elaborate on the addressee-question of procedur-
al rules. I have demonstrated in detail why exclusionary rules do in fact
apply in an extra-investigatory context.
More convincing arguments to question the utility of the deterrence
rationale within an extra-investigatory context are the following:
First, even in the case of police conduct, it was remarked that there
are other forms to ‘police the police’, such as disciplinary proceedings or
criminal prosecution of law enforcement officials. 424 When private individ-
419
Roberts and Zuckerman, 2010, p. 25, see above note 192.
420
In the same vein, see Zuckerman, 1987, p. 59, see above note 194.
421
Roberts and Zuckerman, 2010, pp. 27, 29 ff., see above note 192.
422
Ibid., p. 31.
423
P. Duff, 2004, p. 162, see above note 193.
424
As is the case in Germany, Thaman and Brodowski, 2020, p. 458, see above note 196.

uals act, the criminal prosecution option becomes even more relevant, as is
one of the prevailing objections against exclusionary rules in an extra-
investigatory context in Germany. However, the criminal prosecution ar-
gument needs to be treated with caution at the international level – as ar-
gued earlier. 425
Second, it is doubtful whether the exclusion of evidence is really the
best vindication for police wrongdoing, especially when the individual of-
ficer is more concerned with making an arrest and/or has no personal inter-
est in a conviction. 426 This counter-argument is even stronger at the interna-
tional level, considering the individual motivations of private investigators,
often acting in the interests of their donors. Third, in many criminal justice
systems, officials who violate an exclusionary rule never learn whether or
not the evidence they obtained is excluded. 427 This argument is especially
true at the international level – for instance, when CIJA collects evidence
and it is unclear before which national or international court this evidence
might be used. 428 This leads to the fourth counter-argument: if it is doubtful
whether public officials know in fact the exclusionary rule that might apply.
This is all the more true in a context where it is unclear where the evidence
might be admitted.
ICTs have reacted to the weakness of the deterrence theory, albeit in
the inter-investigatory context. In Brđanin, the Trial Chamber admitted
transcripts of illegally intercepted telephone conversations by the security
forces of Bosnia and Herzegovina with the argument that the “function of
this Tribunal is not to deter and punish illegal conduct by domestic law en-
forcement authorities by excluding illegally obtained evidence”. 429
425
See above Section 17.5.2.3.1.2.2.1.
426
Thaman and Brodowski, 2020, p. 458, see above note 196; Gless and Macula, 2019, p. 355,
see above note 8.
427
Ibid.
428
In more detail Heinze, 2019, pp. 171 ff., see above note 87; William H. Wiley, “Internation-
al(ised) Criminal Justice at a Crossroads: The Role of Civil Society in the Investigation of
Core International Crimes and the ‘CIJA Model’”, in Morten Bergsmo and Carsten Stahn
(eds.), Quality Control in Fact-Finding, second edition, TOAEP, Brussels, 2020, pp. 547 ff.
429
See ICTY, Prosecutor v. Radoslav Brđanin, Decision on the Defence “Objection to Intercept
Evidence”, 3 October 2003, IT-99-36-T, para. 63 (https://legal-tools.org/doc/7efabf/); see al-
so ICTY, Prosecutor v. Kordić & Čerkez, Transcript, 2 February 2000, IT-95-14/2-T, 13671
(https://www.legal-tools.org/doc/298d4d/): “It’s not the duty of this Tribunal to discipline
armies or anything of that sort”. Pitcher, 2018, p. 291, see above note 192, with further ref-
erences.

17.5.2.3.2.2. Integrity from Object Perspective: The Theory of

Remedies in the Extra-Investigatory Context
The first rationale that does provide useful guidance for the collection of
evidence by private individuals at the international level is the theory of
remedies. This rationale is tailored – so to say – for the irrelevance of the
interrogator’s status. As George Christie remarks, “a right to one’s bodily
integrity, either against the state or against private persons, is only a right
that neither state officials nor private persons may invade one’s bodily in-
tegrity; and, if they do, that the law will give one a remedy against
them”. 430
17.5.2.3.2.2.1. The Punishment Remedy
One possible remedy is a punishment of the interrogator according to sub-
stantive criminal law. To reiterate the Kantian footprint in the remedy theo-
ry: Kant remarks that “if a certain use of freedom is itself a hindrance to
freedom in accordance with universal laws (i.e., wrong), coercion that is
opposed to this (as a hindering of a hindrance to freedom) is consistent
with freedom in accordance with universal laws, that is, it is right”. 431 In
other words, “[c]oercion is in general unjust because it is a hindrance of
freedom, but state coercion following on an unjust hindrance of freedom is
just, for it is a hindrance of a hindrance of freedom, which is consistent
with universal freedom”. 432 Coercion is morally justified “when used to
protect rational agency from standard threats to its existence and flourish-
ing”. 433 Thus,
the use of coercion by the state to restrain the thief is right,
even though it is a hindrance to the thief’s freedom, because
the thief is using his freedom to restrain the victim’s freedom
under a universal law (in this case, the victim’s peaceful en-
joyment of his possession). 434
430
George C. Christie, Philosopher Kings? The Adjudication of Conflicting Human Rights and
Social Values, Oxford University Press, Oxford, 2011, p. 15.
431
Kant, 1991, p. 57 [231], see above note 163.
432
Alan W. Norrie, Law, Ideology and Punishment, Kluwer, London, 1991, p. 51 (emphasis in
the original).
433
Brian Orend, “Kant on International Law and Armed Conflict”, in Canadian Journal of Law
and Jurisprudence, 1998, vol. 11, no. 2, p. 335.
434
Fernando R. Teson, “Kantianism and Legislation”, in Annual Review of Law and Ethics,
2008, vol. 16, p. 283.

Yet, I have previously shown that shifting the remedial possibilities

of the suspect to substantive law presupposes a clear difference between
substantive and procedural law, which is at least questionable at the inter-
national level.
17.5.2.3.2.2.2. Human Rights as Sword and Shield
Rogall refers to the State’s obligation to protect individuals. 435 This is the
shield function of human rights I have previously referred to. 436 This State
obligation would be incomplete if it did not apply when private individuals
obtain illegal evidence. 437 At the same time, the shield function of human
rights collides with its sword function. The State is also obliged to ensure
that justice is done and – indirectly – that the human rights of potential vic-
tims are protected. 438
The argumentative force and even effectiveness of the remedy theory
at the international level is underlined by the central role of human rights.
Even though human rights have a dual character as constitutional norms
and super-positive value, 439 they first took on concrete form as basic rights
within constitutions or constitutional instruments. 440 As Habermas explains
about human rights and basic rights:
As constitutional norms, human rights have a certain primacy,
shown by the fact that they are constitutive for legal order as
such and by the extent to which they determine a framework
within which normal legislative activity is possible. But even
among constitutional norms as a whole, basic rights stand out.
On the one hand, liberal and social basic rights have the form
435
Klaus Rogall, “§ 136a StPO”, in Hans-Joachim Rudolphi et al. (eds.), Systematischer Kom-
mentar zur Strafprozessordnung, vol. II, §§ 94–136a StPO, fifth edition, Wolters Kluwer
(Carl Heymanns), Köln, 2016, mn. 13.
436
437
Rogall, 2016, mn. 13, see above note 435.
438
Ibid., mn. 14.
439
Jürgen Habermas, “Kant’s Idea of Perpetual Peace with the Benefit of 200 Years’ Hindsight”,
in James Bohman and Matthias Lutz-Bachmann (eds.), Perpetual Peace – Essays on Kant’s
Cosmopolitan Ideal, MIT Press, Cambridge, 1997, p. 137 (“as constitutional norms they en-
joy a positive validity (of instituted law), but as rights they are attributed to each person as a
human being they acquire a above positive value”).
440
Ibid.

of general norms addressed to citizens in their properties as

“human beings” and not merely as member of a polity. 441
Article 21(3) of the ICC Statute forms part of the provisions that
identify the applicable law of the Court. It states that the
application and interpretation of law […] must be consistent
with internationally recognized human rights, and be without
any adverse distinction founded on grounds such as gender
[…], 442 age, race, colour, language, religion or belief, political
or other opinion, national, ethnic or social origin, wealth, birth
or other status. 443
Therefore, ICC judges draw from a large body of human rights law
with ample discretion to guarantee the most basic and important protec-
tions. 444 Article 21(3) thus reflects support for the view “that the nature of
human rights is such that they may have a certain special status or, at a
minimum, a permeating role within international law”. 445
441
Ibid.
442
As defined in the ICC Statute, Article 7(3), see above note 182, the term ‘gender’ “refers to
the two sexes, male and female, within the context of society” (fn. added).
443
Ibid., Article 21(3).
444
See also Adriaan Bos, “1948–1998: The Universal Declaration of Human Rights and the
Statute of the International Criminal Court”, in Fordham International Law Journal, 1998–
99, vol. 22, no. 2, pp. 229, 234.
445
Rebecca Young, “‘Internationally Recognized Human Rights’ Before the International Crim-
inal Court”, in International and Comparative Law Quarterly, 2011, vol. 60, no. 1, pp. 189–
90; Michael Reisman, “Sovereignty and Human Rights in Contemporary International Law”,
in American Journal International Law, 1990, vol. 84, no. 4, pp. 866, 872: “The internation-
al human rights program is more than a piecemeal addition to the traditional corpus of inter-
national law, more than another chapter sandwiched into traditional textbooks of interna-
tional law. By shifting the fulcrum of the system from the protection of sovereigns to the
protection of people, it works qualitative changes in virtually every component.”; James D.
Fry, “International Human Rights Law in Investment Arbitration: Evidence of International
Law’s Unity”, in Duke Journal of Comparative & International Law, 2007–08, vol. 18, no.
1, p. 123: “The possibility exists that the field of human rights is an extra-special type of
specialized regime that impacts all aspects of international law, and should not be seen as
just another specialized body of law that other specialized bodies might use to reinterpret
their own rules in its light, but is one that requires other specialized bodies to be reinterpret-
ed in its light”; Dinah Shelton, “Normative Hierarchy in International Law”, in American
Journal International Law, 2006, vol. 100, no. 2, pp. 291, 294; Stefanie Schmahl, “Human
Dignity in International Human Rights, Humanitarian and International Criminal Law: A
Comparative Approach”, in Eric Hilgendorf and Mordechai Kremnitzer (eds.), Human Dig-
nity and Criminal Law, Duncker & Humblot, Berlin, 2018, p. 101; Yvonne McDermott,
“The Influence of International Human Rights Law on International Criminal Procedure”, in

Within the context of the ICC Statute, human rights reached the sta-
tus of basic rights. In this context, human rights violations “are no longer
condemned and fought from the moral point of view in an unmediated way,
but are rather prosecuted as criminal actions within the framework of state-
organised legal order according to the institutionalised legal procedures”. 446
The Statute translates general human rights norms “into the language of
criminal law”, not only by defining the core international crimes, but also
by providing procedural guarantees and a canonical formulation of the role
of internationally recognised human rights. 447 The Appeals Chamber of the
ICC has ruled, concerning the role of human rights in the interpretation of
the Statute, that
[h]uman rights underpin the Statute; every aspect of it […]. Its
provisions must be interpreted, and more importantly applied
in accordance with internationally recognized human rights;
first and foremost, in the context of the Statute, the right to a
fair trial, a concept broadly perceived and applied, embracing
the judicial process in its entirety. 448
In other words, human rights can certainly be seen as the mainstay of
the ICC Statute. 449 The mere existence and work of the Court help to pro-
mote human rights by: creating a historical record for past wrongs; 450 offer-
ing a forum for victims to voice their opinions and receive satisfaction and
compensation for past violations; 451 creating judicial precedent; and deter-
Philipp Kastner (ed.), International Criminal Law in Context, Routledge, London, New York,
2018, p. 288.
446
Habermas, 1997, p. 140, see above note 439.
447
ICC Statute, Article 21(3), see above note 182: “The application and interpretation of law
pursuant to this article must be consistent with internationally recognized human rights”.
448
Lubanga, 2006, para. 37, see above note 114. The ICC Pre-Trial Chamber I referred to that
Judgment in Prosecutor v. Laurent Gbagbo, Pre-Trial Chamber I, Decision on the fitness of
Laurent Gbagbo to take part in the proceedings before this Court, 2 November 2012, ICC-
02/11-01/11-286-Red, para. 45 (http://www.legal-tools.org/doc/4729b8/).
449
Benjamin Perrin, “Searching for Law While Seeking Justice: The Difficulties of Enforcing
International Humanitarian Law in International Criminal Trials”, in Ottawa Law Review,
2007–08, vol. 39, no. 2, p. 398.
450
United Nations Security Council, Statement of Judge Claude Jorda, UN Doc. S/PV.4161, 20
June 2000, p. 3 (http://www.legal-tools.org/doc/365c3f/); Jens David Ohlin, “A Meta-
Theory of International Criminal Procedure: Vindicating the Rule of Law”, in UCLA Jour-
nal of International Law & Foreign Affairs, 2009, vol. 77, no. 1, pp. 86 ff. For more detail,
see Heinze, 2014, pp. 218 ff., see above note 110.
451
Ben Swart, “Foreword”, in Journal of International Criminal Justice, 2008, vol. 6, no. 1,
pp. 87, 100; Minna Schrag, “Lessons Learned from ICTY Experience”, in Journal of Inter-

ring potential violators of the gravest crimes 452 while punishing past of-
fenders. 453 Thus, human rights norms in the Statute “provide a blueprint for
the common good of a community” in the Aristotelian sense 454 – which is,
at the same time, the link to Habermas’s interpretation of Republicanism. 455
Kant laid the foundations for all current conceptions of human dignity and
world peace. For Kant, a permanent peace is predicated on the recognition
and respect for human rights, and gross human rights violations rights must
be stigmatised as serious wrongs and punished. 456 Kant’s language in this
regard resonates in the following statement by the ICTY Appeals Chamber:
A State-sovereignty-oriented approach has been gradually
supplanted by a human-being oriented approach. Gradually
the maxim of Roman law hominum causa omne jus constitu-
tum est (all law is created for the benefit of human beings) has
gained a firm foothold in the international community as well.
It follows that in the area of armed conflict the distinction be-
tween interstate wars and civil wars is losing its value as far as
human beings are concerned. Why protect civilians from bel-
ligerent violence, or ban rape, torture or the wanton destruc-
tion of hospitals, churches, museums or private property, as
well as proscribe weapons causing unnecessary suffering
when two sovereign States are engaged in war, and yet refrain
from enacting the same bans or providing the same protection
when armed violence has erupted “only” within the territory
national Criminal Justice, 2004, vol. 2, no. 2, pp. 427–28. For Ralph, this helps to constitute
a world society: see Jason Ralph, “International Society, the International Criminal Court
and American Foreign Policy”, in Review of International Studies, 2005, vol. 31, no. 1,
pp. 27 (39).
452
Kai Ambos, Treatise on International Criminal Law, vol. I, Oxford University Press, Oxford,
2013, p. 71.
453
ICTR, The Prosecutor v. Omar Serushago, Trial Chamber, Sentence, 5 February 1999,
ICTR-98-39-S, para. 20 (http://www.legal-tools.org/doc/e2dddb/); ICTR, The Prosecutor v.
Georges Anderson Nderubumwe Rutaganda, Trial Chamber, Judgement and Sentence, 6 De-
cember 1999, ICTR-96-3-T, para. 455 (http://www.legal-tools.org/doc/f0dbbb/); ICTR, The
Prosecutor v. Emmanuel Ndindabahizi, Trial Chamber, Judgement and Sentence, 15 July
2004, ICTR-2001-71-I, para. 498 (http://www.legal-tools.org/doc/272b55/); ICTR, The
Prosecutor v. François Karera, Trial Chamber, Judgement and Sentence, 7 December 2007,
ICTR-01-74-T, para. 571 (http://www.legal-tools.org/doc/7bc57f/).
454
John M. Czarnetzky and Ronald J. Rychlak, “An Empire of Law: Legalism and the Interna-
tional Criminal Court”, in Notre Dame Law Review, 2003, vol. 79, no. 1, pp. 55, 110.
455
Fernando H. Llano, “European Constitutional Patriotism and Postnational Citizenship in
Jürgen Habermas”, in Archiv für Rechts- und Sozialphilosophie, 2017, vol. 103, no. 4, p. 506.
456
Ambos, 2013, pp. 293, 306, see above note 452.

of a sovereign State? If international law, while of course duly

safeguarding the legitimate interests of States, must gradually
turn to the protection of human beings, it is only natural that
the aforementioned dichotomy should gradually lose its
weight. 457
The human rights language of Article 21(3) of the ICC Statute is
translated into the admissibility provision of Article 69. Here, integrity
from the perspective of the suspect is visibly enshrined in paragraph 7:
“Evidence obtained by means of a violation of this Statute or international-
ly recognized human rights shall not be admissible if […] [t]he admission
of the evidence would be antithetical to and would seriously damage the
integrity of the proceedings”. 458 At the same time, the integrity of the per-
son as “internationally recognized human rights” is interlocked with integ-
rity from the perspective of the process.
Taken the strong stance of human rights at the ICC, combined with a
Kantian vision of human dignity protection, some scholars in my jurisdic-
tion, Germany, make an exception of the general admissibility of illegally
obtained evidence by private individuals when the constitutional right to
human dignity has been infringed, 459 or when the collection of evidence “is
flawed with an extreme violation of rights”. 460
17.5.2.3.2.3. Integrity from the Context Perspective: The Integrity of
the Process in the Extra-Investigatory Context
At the heart of exclusionary rules within the extra-investigatory context lies
the integrity of international criminal procedure itself. Illegally obtained
evidence by private individuals questions the moral authority of the verdict
and its legitimacy. The evidence may be unreliable. Admitting such evi-
dence might violate the rule of law. So much about the raw claims. The ba-
457
ICTY, Prosecutor v. Duško Tadić, Appeals Chamber, Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, IT-94-1-AR72, 2 October 1995, para. 97. For an analy-
sis, see Luigi D.A. Corrias and Geoffrey M. Gordon, “Judging in the Name of Humanity: In-
ternational Criminal Tribunals and the Representation of a Global Public”, in Journal of In-
ternational Criminal Justice, 2015, vol. 13, no. 1, pp. 100–1.
458
Emphasis supplied.
459
Kleinknecht, 1966, p. 1543, see above note 350; Herbert Diemer, “§136a StPO”, in Rolf
Hannich (ed.), Karlsruher Kommentar zur Strafprozessordnung, eighth edition, C.H. Beck,
München, 2019, mn. 3 in fine; Matula, 2012, p. 101, see above note 314.
460
Kleinknecht, 1966, p. 1543, see above note 350; Karl-Heinz Nüse, Zu den Beweisverboten
im Strafprozeß, in Juristische Rundschau, 1966, p. 281 (285); Diemer, 2019, mn. 3, see
above note 459.

sis of the integrity of the process is fairness. I have elaborated on this else-
where with Shannon Fyfe. 461
The interrelationship between criminal justice and fairness is obvious.
A judicial or administrative body is tasked with serving the public, and in
serving the public, a government body’s most important higher-order goal
is to treat every member of the public fairly. Especially the juxtaposition of
procedural and substantive fairness is vital for private investigations. Pro-
cedural fairness can be assessed based on a system’s rules 462 and will be
translated into integrity from the perspective of the process. Rights that are
guaranteed by procedures “allow for a system of law to emerge out of a set
of substantive rules and […] minimize arbitrariness”. 463 If the same estab-
lished rules and procedures are applied to all defendants and suspects (or
potential suspects) without bias, then a system can be said to be procedural-
ly fair, regardless of outcomes. To provide an extreme example: the ac-
cused is acquitted due to illegally obtained evidence, even though this evi-
dence proofs his guilt beyond reasonable doubt – a popular counter-
argument against the remedy rationale. 464 However, “equal treatment in-
volves at one extreme the impartial application of existing rules and proce-
dures, regardless of the outcome (procedural justice), and at the other, the
idea that any policies or procedures that have the effect of punishing or
controlling a higher proportion of one social group than another are un-
just”. 465 One might argue, then, “that law and social policy should be ad-
justed so as to achieve equal outcomes”. 466 This is distributive fairness,
which shall be neglected in this chapter. Substantive fairness involves the
protection of substantive rights, such as the right to bodily autonomy, liber-
461
Heinze and Fyfe, 2020, pp. 345 ff., see above note 118; Heinze and Fyfe, 2018, pp. 3 ff., see
above note 110.
462
See, for example, Fuller, 1969, see above note 282; McDermott, 2016, see above note 382.
463
Larry May, Global Justice and Due Process, Cambridge University Press, 2011, p. 52.
464
Zuckerman, 1987, p. 58, see above note 194 (“It is by no means self-evident that acquittal of
the guilty is an appropriate response to earlier police transgressions. Nor is a blanket exclu-
sion capable of achieving a balance between the seriousness of the infringement and the
benefit to the accused”).
465
Loraine Gelsthorpe and Nicola Padfield, “Introduction”, in Loraine Gelsthorpe and Nicola
Padfield (eds.), Exercising Discretion: Decision-making in the criminal justice system and
beyond, Willian Publishing, New York, 2003, p. 12. See also Rebecca E. Hollander-Blumoff,
“Fairness Beyond the Adversary System”, in Fordham Law Review, 2017, vol. 85, no. 5,
pp. 2081–2095.
466
Gelsthorpe and Padfield, 2003, p. 12, see above note 465.

ty from confinement, or a trial that does not result in a mistaken convic-

tion. 467 A trial that results in an absurd outcome or one that is intuitively
immoral would be considered substantively unfair. 468
The public generally thinks about fairness in terms of substantive
justice, meaning that a just result of a trial is one in which the guilty are
convicted, and the innocent acquitted. Law enforcement officers, for in-
stance, “have the obligation to convict the guilty and to make sure they do
not convict the innocent. They must be dedicated to making the criminal
trial a procedure for the ascertainment of the true facts surrounding the
commission of the crime”. 469 Yet, this result-based, substantive view of
fairness can also be hard to achieve, depending on the availability and ad-
missibility of evidence. Transferred to the debate around illegally obtained
evidence and the rationale for its exclusion, this evidence might not only be
procedurally unfair but – it might also have low reliability and could put a
conviction based merely on this piece of evidence in question with regard
to the fairness of its outcome. This is an argument similar to those brought
forward by the reliability rationale. 470 A conviction that is based on unreli-
able evidence is not substantially fair. Strictly speaking, substantive fair-
ness has a truth component, a fact that lays bare the common conceptual
denominator of the juxtapositions ‘substantive fairness vs. procedural fair-
ness’ and ‘substantive truth vs. procedural truth’. 471 In an inquisitorial or
policy-implementing 472 system like Germany, the criminal justice system
seeks the truth, and all parties to the legal proceedings share this aim. Here,
truth in the context of criminal procedure is only a “subgoal” of the goal
“peace under the law”. 473 A complete analysis of the role of truth-finding in
467
See, for example, Larry Alexander, “Are Procedural Rights Derivative Substantive Rights?”,
in Law and Philosophy, 1998, vol. 17, no. 1, p. 19.
468
See Fuller, 1969, see above note 282.
469
US SC, US v. Wade, 1967, 388 US 218, pp. 256–58; Corrigan, 1986, p. 538, see above note
181.
470
See above Section 17.5.2.2.3.2. and below Section 17.5.2.3.2.3.2.
471
In a similar vein, see HO Hock Lai, A Philosophy of Evidence Law, Oxford University Press,
Oxford, 2008, p. 49: “Various writers have cautioned against the tendency to explain and
justify the law of evidence in strictly instrumental terms. They have argued persuasively that
some evidential rules, principally those traditionally regarded as side-constraints on the main
task of truth determination, are grounded in values that are intrinsic to the fairness, legitima-
cy, or integrity of the trial”.
472
For a categorisation of procedural models, see Heinze, 2014, pp. 104 ff., see above note 110.
473
See Ralf Peter Anders, “Straftheoretische Anmerkungen zur Verletztenorientierung im Straf-
verfahren”, in Zeitschrift für die gesamte Strafrechtswissenschaft, 2012, vol. 124, no. 2,

the criminal process (and status afforded to the concept of ‘truth’ altogether)
is outside the scope of this chapter. In Germany, a distinction is made be-
tween procedural truth and substantive truth, which largely corresponds
with the distinction between procedural fairness and substantive fairness. 474
As Weigend notes, “[i]f truth-finding connotes the revelation (or discovery)
of an objective reality, it is the result that legitimizes the process. The judi-
cial process is only the means to discover the hidden, ‘objective’ reality and
should be organized to optimize the chances of finding the ‘piece of
gold’”. 475 He goes on to distinguish this substantive view of truth from
procedural truth, which is “whatever emerges from a fair and rational dis-
course among the parties’, and ‘the content of the rules that determine the
process [are] more important than the outcome itself, and adherence to the-
se rules acquires paramount importance for truth-finding”. 476 Interestingly,
the BGH has explicitly underlined the role of procedural truth in criminal
procedure:
[a]cceptance and legitimacy of criminal judgments are not
based on the trust in a ‘correctness’, understood as a material
truth that is discovered in the course of a criminal trial. Instead,
trust in the ‘procedural truth’ it is both necessary and suffi-
cient. The ‘procedural truth’ is created through a trial that
p. 393. However, it should be stressed that the goals of criminal procedure in Germany and
their relationship are highly disputed, see Dieter Dölling, “Über das Ziel des Strafver-
fahrens”, in Christian Fahl et al. (eds.), Festschrift für Werner Beulke zum 70 Geburtstag,
C.F. Müller, Heidelberg, 2015, pp. 679–87. About the divergent meanings of ‘truth’ in cri-
minal procedure Edda Weslau, “Wahrheit und Legenden: die Debatte über den adversatori-
schen Strafprozess”, in Roland Hefendehl, Tatjana Hörnle and Luis Greco (eds.), Festschrift
für Bernd Schünemann zum 70 Geburtstag, De Gruyter, Berlin, 2014, pp. 1002–1005.
474
In that vein Edda Weßlau, Das Konsensprinzip im Strafverfahren – Leitidee für eine Gesam-
treform?, Nomos, Baden-Baden, 2002, p. 20.
475
See Thomas Weigend, “Should We Search for the Truth, and Who Should Do it?”, in North
Carolina Journal of International Law and Commercial Regulation, 2011, vol. 36, no. 2,
p. 389 (fn. omitted).
476
See ibid., p. 389 (fn. omitted). Weigend cites Jacqueline Hodgson, “Conceptions of the Trial
in Inquisitorial and Adversarial Procedure”, in Antony Duff et al. (eds), The Trial on Trial –
Volume 2: Judgment and calling to account, Hart, Oxford, 2006, p. 225–226. For a general
analysis, see A. Duff et al., 2007, pp. 61 ff., see above note 145. See also Safferling, 2012,
p. 55, see above note 359. From the perspective of communication- and discourse-theory,
see Klaus Rolinski, “Der Grundsatz der Unmittelbarkeit: Garant der Wahrheitsfindung?”, in
Robert Esser et al. (eds.), Festschrift für Hans-Heiner Kühne, C.F. Müller, Heidelberg, 2013,
p. 311; Mariana Sacher, “Diskurstheorie als Legitimation für die Absprachen im Strafverfah-
ren?”, in Roland Hefendehl, Tatjana Hörnle, and Luis Greco, Festschrift für Bernd Schüne-
mann zum 70. Geburtstag, De Gruyter, Berlin, 2014, pp. 959–960.

complies with both the substantial and procedural law and is

therefore fair. 477
Thus, while both the Article 20(3) of the German Basic Law
(Grundgesetz, ‘GG’) – in conjunction with Article 2(1) GG – and Article 6
of the European Convention on Human Rights, 478 ensure the right to a fair
trial and other protections for the accused, a primary aim of the German
criminal justice system is to seek the truth, or to seek the substantively fair
result. The US criminal justice system, to take an example from the com-
mon law tradition, purports to be aimed at procedural fairness. The Four-
teenth Amendment of the US Constitution states that no State shall “de-
prive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the
laws”. 479 The Fourth, Fifth, Sixth, and Eighth Amendments also provide
protections for accused individuals. 480 Yet it remains the case that in an ad-
versarial system like the US, the judge is responsible for protecting the ac-
cused’s due process rights, or procedural fairness, and the prosecutor is re-
sponsible for obtaining a substantively fair result within the parameters set
by the judge (albeit through the adversarial process rather than a pure truth-
seeking process). The same applies to the Crown Prosecution Service in
England and Wales, which searches for an “approximation of ‘the truth’”,
understanding “truth as proof”, 481 which appears to fall within the concept
477
See BGH, Judgment from 10 June 2015 – 2 StR 97/14, in Neue Zeitschrift für Strafrecht
(NStZ) 2016, 52, 58 (author’s translation). The original quote reads:
Akzeptanz und Legitimation strafrichterlicher Urteile werden nicht durch das Vertrauen
auf ‘Richtigkeit’ im Sinne einer im Verfahren gefundenen materiellen Wahrheit be-
gründet. Ausreichend aber auch erforderlich ist das Vertrauen in die ‘prozessuale Wahr-
heit’, die vermittelt wird durch ein rechtsrichtiges, prozessordnungsgemäßes und daher
unter anderem faires Verfahren.
478
Claus Roxin and Bernd Schünemann, Strafverfahrensrecht, twenty-ninth edition, C.H. Beck,
München, 2017, § 11 mn. 4; Bertram Schmitt, “Introduction”, in Lutz Meyer-Goßner and
Bertram Schmitt (eds.), Kommentar zur Strafprozessordnung, sixty-third edition, C.H. Beck,
München, 2020, mn. 19; Klaus Geppert, “Zum ‚fair-trial-Prinzip’ nach Art. 6 Abs. 1 Satz 1
der Europäischen Menschenrechtskonvention”, in Juristische Ausbildung, 1992, pp. 597–
604 (597); Robert Esser, Auf dem Weg zu einem europäischen Strafverfahrensrecht, de Gruy-
ter, Berlin, 2002, p. 401.
479
United States, Constitution of the United States of America, 1787, amendment XIV (https://
www.legal-tools.org/doc/bc3d56/).
480
Ibid., amends. IX, X, XI, XIII.
481
Gary Slapper and David Kelly, The English Legal System, eighth edition, Routledge, Lon-
don, New York, 2017, p. 394 (emphasis in the original). Cicchini argues that the truth as
proof-model is now also applied by prosecutors in the US, see Michael D. Cicchini, “Spin

of ‘procedural truth’ rather than ‘substantive truth’. 482 In the international

arena, too, substantive fairness has received particular emphasis. 483 At the
same time, however, especially at the ad hoc Tribunals, procedural fairness
could outweigh substantive fairness: “A Chamber may exclude evidence if
its probative value is substantially outweighed by the need to ensure a fair
trial”. 484
17.5.2.3.2.3.1. Integrity as Moral Authority of the Verdict, and
Integrity as Legitimacy
As remarked earlier, the public would hold a critical attitude towards the
fairness of the trial and argue that the courts fail to uphold procedural jus-
tice if wrongfully obtained evidence would be admitted in every case and
without scrutiny. 485 What this sentence incorporates is a combination of
substantive fairness and the communicative effect of a judgment. In the
words of Duff et al.:
The communicative process is essential in order that verdicts
reflect not only the epistemic standards appropriate to the
criminal law, but also the court’s moral standing to condemn
the defendant for committing a public wrong. Such moral
standing, we suggest, is only secure if the defendant is treated
as a full citizen who is entitled to participate in a criminal pro-
cess which he could accept as legitimate. 486
This combination has turned out to be one of the theoretical bases of inter-
national criminal law. 487
Doctors: Prosecutor Sophistry and the Burden of Proof”, in University of Cincinnati Law
Review, 2018, vol. 87, no. 2, p. 491.
482
See in more detail Heinze and Fyfe, 2020, p. 348, see above note 118.
483
Pitcher, 2018, p. 281, see above note 192 (“is concerned with the need to ensure a fair trial;
specifically, it appears to be linked to a chamber’s truth-finding task, i.e. the ability of a
chamber to determine the guilt or innocence of accused accurately, or otherwise to ‘trial
fairness’”) with further references.
484
ICTY RPE, Rule 89(D), see above note 341.
485
See above Section 17.5.2.2.3.1.
486
487
The following part is, albeit in modified form, taken from Alexander Heinze, “The Statute of
the International Criminal Court as a Kantian Constitution”, in Morten Bergsmo and Emili-
ano J. Buis (eds.), Philosophical Foundations of International Criminal Law: Correlating
Thinkers, TOAEP, Brussels, 2018, pp. 351–428.

At the international level, retribution is clothed in an expressivist 488

and communicative 489 appearance, 490 that is, as the expression of condem-
nation and outrage of the international community, where the international
community in its entirety is considered one of the victims. 491 The stigmati-
sation and punishment for gross human rights violations in service of the
confirmation and reinforcement of fundamental human rights norms can
justify a right to punish of an international criminal tribunal that lacks the
authority of a State. Given this justification of punishment, what the world
community is trying to achieve through international criminal trials is a
communicative effect: to show the world that there is justice at an interna-
tional level, and that no perpetrator of grave international crimes can es-
488
See for a definition and in more detail Heinze, 2018, pp. 417 ff., see above note 487. On the
different forms of expressivism in ICL Sander, LJIL, 32 (2019), 851 ff.; Carsten Stahn, A
Critical Introduction to International Criminal Law, Cambridge University Press, Cam-
bridge, 2019, pp. 181–182; on the limits of expressivism Barrie Sander, “The Expressive
Limits of International Criminal Justice: Victim Trauma and Local Culture in the Iron Cage
of the Law”, in International Criminal Law Review, 2019, vol. 19, pp. 1014 ff.; Daniela
Demko, “An Expressive Theory of International Punishment for International Crimes”, in
Florian Jeßberger and Julia Geneuss (eds.), Why punish perpetrators of mass atrocities?
Purposes of punishment in international criminal law, Cambridge University Press, 2020,
pp. 176 ff.
489
Heinze, 2018, pp. 417 ff., see above note 487; Klaus Günther, “Positive General Prevention
and the Idea of Civic Courage in International Criminal Law”, in Florian Jeßberger and Julia
Geneuss (eds.), Why punish perpetrators of mass atrocities? Purposes of punishment in in-
ternational criminal law, Cambridge University Press, 2020, pp. 213 ff.
490
Mark A. Drumbl, Atrocity, Punishment, and International Law, Cambridge University Press,
Cambridge, 2007, pp. 173 ff.; Mark A. Drumbl, “International Punishment from ‘Other’ Per-
spectives”, in Róisín Mulgrew and Denis Abels (eds.), Research Handbook on the Interna-
tional Penal System, Edward Elgar Publishing, Northampton, 2016, p. 386; Jonathan H.
Choi, “Early Release in International Criminal Law”, in Yale Law Journal¸ 2014, vol. 123,
no. 6, p. 1810; Robert D. Sloane, “The Expressive Capacity of International Punishment”, in
Stanford Journal of International Law, 2007, vol. 43, no. 1, p. 44; Kirsten J. Fisher, Moral
Accountability and International Criminal Law, Routledge, London, 2012, pp. 51, 56–63, 65;
Carsten Stahn, “Between ‘Faith’ and ‘Facts’”, in Leiden Journal of International Law, 2012,
vol. 25, no. 2, pp. 251, 279–80; Larry May, Aggression and Crimes Against Peace, Cam-
bridge University Press, Cambridge, 2008, pp. 329 ff. From a German perspective, see also
Klaus Günther, “Criminal Law, Crime and Punishment as Communication”, in Andrew
P. Simester et al. (eds.), Liberal Criminal Theory, Hart, Oxford, 2014, pp. 123 ff. About the
communicative function within the (new) retributivist theories, see Michael Pawlik, “Kritik
der präventionstheoretischen Strafbegründungen”, in Klaus Rogall et al. (eds.), Festschrift
für Rudolphi, Luchterhand, Neuwied, 2004, p. 229.
491
Kai Ambos, “Review Essay: Liberal Criminal Theory”, in Criminal Law Forum, 2017, vol.
28, no. 3, pp. 589, 601.

cape it. 492 That is why international criminal law seeks to achieve retribu-
tive and deterrent effects of punishment through creating a certain percep-
tion of international criminal trials. It is also why the protection of due pro-
cess rights is perceived as crucial in order to restore international peace,
and strengthen the trust of the international society in legal norms (proce-
dure “as an end in itself” 493), and is the reason why Nazi perpetrators were
not executed without trial. Instead, the former President of the US, Harry S.
Truman, remarked at the start of the trials before the International Military
Tribunal at Nuremberg in 1945: “The world should be impressed by the
fairness of the trial. These German murderers must be punished, but only
upon proof of individual guilt at a trial”. 494
It would be detrimental to the expressivist and communicative func-
tion of a public trial, if a conviction rendered by an ICT was based on ille-
gally obtained evidence – irrespective of the status of the person who ob-
tained the evidence. Rogall makes a similar general-preventive, or expres-
sivist argument: trials and judgments respectively have a general-
preventive effect. This effect would be circumvented, if evidence that is
illegally obtained by private individuals could generally be admitted. 495
Rogall combines this argument with an empirical premise: private investi-
492
International criminal law is also “educating society about its past” through the truth-telling
function of international criminal trials, see Mina Rauschenbach, “Individuals Accused of
International Crimes as Delegitimized Agents of Truth”, in International Criminal Justice
Review, 2018, Advance Article, p. 3 with further references.
493
Jonathan Hafetz, Punishing Atrocities Through a Fair Trial, Cambridge University Press,
2018, p. 109.
494
Cited in Francis Biddle, In Brief Authority, Greenwood Press, Westport, 1962/1972, p. 372;
Patricia M. Wald, “Running the Trial of the Century”, in Cardozo Law Review, 2005–6, vol.
27, no. 4, pp. 1559, 1574. US Chief prosecutor Jackson famously argued: “Unless we write
the record of this movement with clarity and precision, we cannot blame the future if in days
of peace it finds incredible the accusatory generalities uttered during war. We must establish
incredible events by credible evidence.”, see Telford Taylor, The Anatomy of the Nuremberg
Trials, Back Bay Books, Boston, 1992, p. 54; Henry T. King, “The Spirit of Nurem-
berg―Idealism”, in Beth A. Griech-Polelle (ed.), The Nuremberg War Crimes Trial and its
Policy Consequences Today, 2nd edn., Nomos, Baden-Baden 2020, p. 5. Or, in the words of
British International Military Tribunal Judge Geoffrey Lawrence, one wanted to punish
“those who were guilty”, to establish “the supremacy of international law over national law”
and to prove “actual facts, in order to bring home to the German people and to the peoples
of the world, the depths of infamy to which the pursuit of total warfare had brought Germa-
ny”, see Geoffrey Lawrence, “Nuremberg Trial”, in Guénaël Mettraux (ed.), Perspectives on
the Nuremberg Trial, Oxford University Press, 2008, pp. 290, 292.
495

gations are aimed at the production of evidence. Thus, private individuals

in such a context show a reduced willingness to abide by procedural law or
due process, due to a case of what Rogall calls “evidentiary emergency”. 496
Excluding the evidence has the purpose of demonstrating the illegality of
an individual taking justice in his or her own hands – a purpose that is gen-
erally assigned to an expressivist theory of punishment. This is especially
underlined upon viewing the criminal process as a system: if evidence,
based on an infringement of rights and a violation of rules, is used in a trial,
the public loses confidence in the system of rules and their effectiveness –
and not so much in a particular rule. It is of secondary importance who in
fact broke the rules and violated the rights, whether a public official or a
private individual. The public’s trust in the system of rules is different from
its expectation to be protected by the State against rights violations. The
latter is what I have previously described as the sword function of human
rights, 497 or Strafanspruch. 498 The former touches upon the expressivist and
communicative function of a trial and the judgment. 499 More concretely:
norms are recognised by society as a whole and determine the contents of
social communication 500 – an argument put forward by Jakobs. He draws
attention to the “validity” (Geltung) of a norm and its affirmation
496
Ibid.
497
498
Henning Radtke, “Beweisverwertungsverbote in Verfahrensstadien vor der Hauptverhand-
lung und die sog. Widerspruchslösung”, in Stephan Barton et al. (eds.), Festschrift für Rein-
hold Schlothauer zum 70. Geburtstag, C.H. Beck, München, 2018, pp. 461 ff.; Hilde Kauf-
mann, Strafanspruch Strafklagerecht, Otto Schwartz, Göttingen, 1968), pp. 9 ff.; Klaus Gün-
ther, “Falscher Friede durch repressives Völkerstrafrecht?”, in Werner Beulke et al. (eds.),
Das Dilemma des rechtsstaatlichen Strafrechts. Berliner Wissenschafts-Verlag, Berlin, 2009,
p. 89 (“Parallel zum öffentlichen Strafanspruch beim nationalstaatlichen Strafrecht wird
auch der völkerrechtliche Strafanspruch nicht im Namen der Verletzten erhoben, sondern im
Namen der Völkergemeinschaft oder im Namen eines Staates, der auf der Grundlage des
Universalitätsprinzips ein Völkerrechtsverbrechen verfolgt”). In detail Kai Ambos, “Straf-
recht und Verfassung: Gibt es einen Anspruch auf Strafgesetze, Strafverfolgung, Strafver-
hängung?”, in Jan Christoph Bublitz et al. (eds.), Recht – Philosophie – Literatur. Festschrift
für Reinhard Merkel zum 70. Geburtstag, Berlin, Duncker & Humblot, 2020, pp. 565 ff.
About a critique of the term ‘Strafanspruch’ Jung, 2019, pp. 265–266, see above note 333.
499
See above notes 488 and 489 with main text.
500
Günther Jakobs, “Strafrechtliche Zurechnung und die Bedingungen der Normgeltung”, in
Ulfried Neumann and Lorenz Schulz (eds.), Verantwortung in Recht und Moral. ARSP-
Beiheft, vol. 74, Franz Steiner Verlag, Stuttgart, 2000, pp. 58–59; Günther Jakobs, “Das
Strafrecht zwischen Funktionalismus und ,,alteuropäischem’’ Prinzipiendenken”, in Zeit-
schrift für die gesamte Strafrechtswissenschaft, 1995, vol. 107, no. 4, pp. 843 ff. In detail

(Bestätigung). 501 Dennis combines these elements under the umbrella of

legitimacy. 502 Understood this way, legitimacy has both a descriptive and
normative element: descriptive, because it “refers to social facts concerning
actors’ beliefs about the legitimate authority” of an ICT; normative due to
the “motivating force” behind an ICT’s judgment (as implementation of
international criminal justice goals). 503 What becomes visible upon reading
these arguments is a close interrelationship between the goals and purposes
of substantive criminal law 504 and procedural law – and underlines, again,
the synchronisation between the two. 505 I have made this argument else-
where: punishing perpetrators of international crimes will not work without
the admission of relevant evidence. Thus, the goal of the admission of rele-
vant evidence for guilt or not is at the same time the goal of punishing per-
petrators of international crimes, which becomes a purpose of international
criminal procedure. 506 Moreover, the admission of relevant evidence as a
goal of international criminal procedure is also connected to the purpose of
punishment “in such a way that it will increase the likelihood that the guilty
will be punished and the innocent will go free”. 507
501
Günther Jakobs, Strafrecht, Allgemeiner Teil, second edition, Walter de Gruyter, Berlin, New
York, 1991, pp. 34 ff. See also Andrew P. Simester, Antje Du Bois-Pedain, and Ulfried
Neumann, Liberal Criminal Theory: Essays for Andreas von Hirsch, Hart Publishing,
Oxford, 2014, p. 25.
502
503
The definitions are taken from Andreas Føllesdal, “The Legitimacy of International Courts”,
in Journal of Political Philosophy, 2020, Advance Article, p. 5. See generally with an in-
structive overview Cesare P.R. Romano, “Legitimacy, Authority, and Performance: Contem-
porary Anxieties of International Courts and Tribunals”, in American Journal of Interna-
tional Law, 2020, vol. 114, pp. 149–163. About the legitimacy of International Criminal Jus-
tice, combined with expressivism, Tom Dannenbaum, “Legitimacy in War and Punishment”,
in Kevin Jon Heller, et al. (eds.), The Oxford Handbook of International Criminal Law, Ox-
ford University Press, Oxford, 2020), pp. 136 ff.
504
In detail, see Heinze, 2018, pp. 929–957, see above note 376.
505
In a similar vein, see Volk, 1978, p. 173, see above note 334.
506
As clarified throughout the chapter, its research object is illegally obtained evidence. It goes
without saying that the sentence to this footnote in the main text applies mutatis mutandis
also to the rationale of disclosing exculpatory evidence and other procedural safeguards. Af-
ter all, the goal of punishing perpetrators of international crimes also strives to punish only
those perpetrators who are perceived to be guilty beyond reasonable doubt.
507
Jens David Ohlin, “Goals of International Criminal Justice and International Criminal Pro-
cedure”, in Göran Sluiter et al. (eds.), International Criminal Procedure, Oxford University
Press, 2013, p. 61.

Yet, it would have a similar detrimental effect, if the decision of ex-

cluding crucial evidence was only due to a relatively minor violation of
legal procedure. The ICTY Appeals Chamber in Karadžić highlighted this
imbalance by recalling
that the Appellant is charged with genocide, crimes against
humanity and war crimes. The public interest in the prosecu-
tion of an individual accused of such offences, universally
condemned, is unquestionably strong. Against the legitimate
interest of the international community in the prosecution of
the Appellant for Universally Condemned Offences stands the
alleged violation of the Appellant’s expectation that he would
not be prosecuted by the Tribunal, pursuant to the alleged
Agreement. 508
Here again, the two dimensions of fairness – procedural fairness (the ac-
cused go free, since procedural rules have been violated) vs. substantive
fairness (the accused are convicted despite the violation of procedural rules,
since they have been found guilty beyond reasonable doubt) – affect a
judgment like two parents their child. Within this rationale, integrity be-
comes a “proxy, synonym or placeholder” for procedural values such as
fairness, due process, natural justice or judicial legitimacy. 509
17.5.2.3.2.3.2. Integrity as Reliability
Substantive fairness in international criminal law is also the objective be-
hind integrity as reliability, since the use of unreliable evidence “increases
the risk of error in fact-finding”. 510 The interrelationship – almost inter-
changeability – of substantive fairness and substantive truth becomes most
visible here, since excluding wrongfully obtained evidence would even ad-
vance the search for truth. As pointed out earlier, integrity as reliability is
informed by the expressivist notion of integrity as moral authority of the
verdict. Rogall expressly refers to a forward-looking evaluation of the ille-
gally obtained evidence and requires the courts to take into account the
“normative” (read as general-preventive, expressive) effect that the admis-
sion of the evidence might have. 511 Thus, the question of whether or not to
508
ICTY, Prosecutor v. Karadžić, Decision on Karadžić’s Appeal of Trial Chamber’s Decision
on Alleged Holbrooke Agreement, 12 October 2009, IT-95-5/18-AR73.4, para. 49 (https://
www.legal-tools.org/doc/a1da0d/). See also Pitcher, 2018, p. 277, see above note 192.
509
510
511

exclude illegally obtained evidence by private individuals is a balancing

exercise, 512 where the search for truth, and “indirectly, society’s interest in
criminal enforcement”, is pit against “the respect for the rights of criminal
defendants and, indirectly, of the entire civilian population, which have
been declared to be so important to the legal order that they have been en-
shrined in human rights conventions and national constitutions”. 513 Con-
sidering this balancing exercise, Haffke sees a prevalence of the search for
truth. 514
For ICTs, a reason not to admit – otherwise admissible – evidence is
that the use of illicit methods would negatively affect the reliability of the
evidence. 515 Article 69(7) of the ICC Statute – lex specialis to the general
admissibility rule of paragraph (4) of the same article – repeats the (new)
Rule 95 of the ICTY and ICTR Statutes stating: “Evidence obtained by
means of a violation of this statute or internationally recognized human
rights shall not be admissible if: […] The violation casts substantial doubt
on the reliability of the evidence”. The integrity as reliability rationale be-
comes even more visible in the ICTY’s framework (now MICT’s respec-
tively): a Chamber “may exclude evidence if its probative value is substan-
tially outweighed by the need to ensure a fair trial” 516 or “if obtained by
methods which cast substantial doubt on its reliability or if its admission is
antithetical to, and would seriously damage, the integrity of the proceed-
ings”. 517
512
Ibid., mn. 15.
513
Thaman and Brodowski, 2020, p. 437, see above note 196.
514
Bernhard Haffke, “Schweigepflicht, Verfahrensrevision und Beweisverbot”, in Goltdam-
mer’s Archiv für Strafrecht, 1973, p. 83.
515
ICC Statute, Article 69(7)(a), see above note 182; also ICTY RPE, Rule 95(1), see above
note 341; ICTR RPE, Rule 95(1), see above note 341 and Mechanism for International
Criminal Tribunals (‘MICT’), Rules of Procedure and Evidence, 8 June 2012, MICT/1, Rule
117(1) (‘MICT RPE’) (https://www.legal-tools.org/doc/cef176/).
516
ICTY RPE, Rule 89(D), see above note 341 and MICT RPE, Rule 105(D), see above note
515 (emphasis added).
517
ICTY RPE, Rule 95, see above note 341; ICTR RPE, Rule 95, see above note 341 and
MICT RPE, Rule 117, see above note 515; also Special Court for Sierra Leone (‘SCSL’),
Rules of Procedure and Evidence, 31 May 2012, Rule 95 (‘SCSL RPE’) (https://www.legal-
tools.org/doc/4c2a6b/) (exclusion if “admission would bring the administration of justice in-
to serious disrepute”).

17.5.2.3.2.3.3. Integrity as Rule of Law

As I have demonstrated above in detail, one of the main rationales for ex-
cluding or not admitting evidence is the rule of law principle. Ideally, the
‘law’ in rule of law incorporates the integrity rationale, that is, the moral
authority of the verdict, legitimacy, fair trial and reliability. 518 The question
that remains to be answered is whether the rule of law principle applicable
to both the extra-investigatory context and the international level?
17.5.2.3.2.3.3.1. Applicability of the Rule of Law to the Extra-
Investigatory Context
I have previously opined that the question of whom a procedural rule is ad-
dressed to cannot be answered without the question of what procedural
rules are concerned with. Applying Luhmann’s systems theory, laws are not
so much addressed to individuals but to closed systems – systems that can-
not be influenced but merely motivated by external factors. I concluded
that the addressee of procedural law is the process as a system. Rules apply
to everyone within that system – and might even apply beyond that system
through transgressive communication (just as the judgment communicates
not only with the accused and victim but with society as a whole). Even
when we divide the procedural law into Crime Control and Due Process
functions, with the former being addressed to the police and prosecution,
the latter applies to everyone that is involved in the investigatory process
when this involvement eventually has an effect on Due Process. Under-
stood this way, the exclusionary rules also apply to private conduct.
In this extra-investigatory context, where exclusionary rules still ap-
ply, the rule of law principle – and with it, integrity – is vital. In fact, it is
the benchmark for every conduct within a procedural system. In the words
of Turvey and Cooley, “The credibility of the criminal justice system relies
heavily on the integrity of those who work in the system”. 519 Due to the
above-mentioned understanding of ‘law’, which incorporates integrity, the
rule of law becomes a “proxy” (a term borrowed from Paul Roberts) for
integrity and procedural values such as fairness, due process, natural justice
518
Dennis, 2020, mn. 2-022, see above note 192. In a similar vein Allen Buchanan, “The Com-
plex Epistemology of Institutional Legitimacy Assessments, As Illustrated by the Case of the
International Criminal Court”, in Temple International and Comparative Law Journal, 2019,
vol. 33, p. 332-333.
519
Turvey and Cooley, 2014, p. 164, see above note 180 (emphasis added).

or judicial legitimacy. 520 In a similar, albeit more restrictive fashion, some

scholars in Germany make an exception of the general admissibility of ille-
gally obtained evidence by private individuals when the State intends to
make use of such evidence. 521 They argue that this might violate the rule of
law, the legal order, or the constitution. 522
Rogall refers to the rule of law that is also applicable in the case of
evidence obtained by private individuals. 523 This goes to what Postema fa-
mously underlined through his “reflexive dimension” of the rule of law,
while referring to Bentham: “Those in power as well as those subject to
that power must be subject to the law”. 524
17.5.2.3.2.3.3.2. Criminal Procedure’s Sub-systems
Every endeavour of applying the systems-theory by Luhmann and Teubner
eventually passes over to the bifurcated decision of how narrow the sys-
tems and sub-systems should be. The criminal process with its various
stages 525 is especially prone to such an endeavour. Strictly speaking, the
investigatory context (sub-system 1) could easily be (and often is) separat-
ed from the trial process (sub-system 2).
17.5.2.3.2.3.3.2.1. Separating Investigatory System and Trial System:
Beweiserhebung vs. Beweisverwertung
Separating the investigatory and trial contexts has the advantage of separat-
ing the effects violations may have within these systems. Let us assume, for
a moment, that both systems are closed systems. They could thus be her-
metically sealed to avoid that a violation of the integrity of one system af-
fects the other system. This way, the advantages of sanctioning illegally
obtained evidence could be enjoyed without risking the rupture of the en-
520
521
Matula, 2012, p. 101, see above note 314.
522
Rogall, 2016, mn. 11 with further references in fn. 63, see above note 435.
523
Ibid., mn. 13: “Nach unserer verfassungsmäßigen Ordnung hat der Staat die Rechtsordnung
so zu gestalten (vgl. Art. 1 Abs. 1 Satz 2, Abs. 3, 20 Abs. 3 GG), dass eine Verletzung der
Grundrechte, namentlich der Menschenwürde, verhindert wird. Diese staatliche Schutz-
verpflichtung besteht dabei auch gegenüber Angriffen Privater”.
524
Gerald J. Postema, “Law’s Rule: Reflexivity, Mutual Accountability, and the Rule of Law”,
in ZHAI Xiaobo and Michael Quinn (eds.), Bentham’s Theory of Law and Public Opinion,
Cambridge University Press, 2014, p. 56.
525

tire trial and eventually putting into question the substantive fairness of an
acquittal (when it is almost certain, for instance, that the accused is guilty).
What sounds like a viable but almost artificial compromise is a reali-
ty in German criminal procedure. German courts differentiate between
rules prohibiting the obtaining or taking of evidence (Beweiserhebungsver-
bote), and rules prohibiting the use of evidence by the court in its assess-
ment of the defendant’s guilt (Beweisverwertungsverbote). 526 How radical-
ly separated the two stages, or put differently: how closed the two sub-
systems are, is a matter of controversy, with the strictest separation-theory
probably brought forward by Jäger (“Separation- and Abstraction Princi-
ple”). 527 Distinguishing between the obtaining of evidence and its actual
use at trial is Janus-faced. This works in both ways: not every illegally ob-
tained piece of evidence necessarily leads to its exclusion. 528 And not all
evidence obtained legally may later be used as evidence. 529 The separation
of the two stages and the focus on the short- and long-term effects of a pro-
cedural violation creates a chain reaction of exclusionary rules: those rules
may address a) the “re-use” 530 of the (same) evidence as evidence in further
proceedings against the same or other defendants; b) a possible effect of
illegally obtained evidence on a fresh investigation; and c) whether further
evidence taken on the basis of excluded evidence needs to be excluded as
well (“fruit of the poisonous tree”; “Fernwirkung”). 531
Separating the two stages in the scenario that this chapter is about (il-
legally obtained evidence in the extra-investigatory context at the interna-
tional level), ICTs could declare that illegally obtained evidence must be
526
In detail, see Thaman and Brodowski, 2020, pp. 434–435, see above note 196.
527
Christian Jäger, Beweisverwertung und Beweisverwertungsverbote im Straprozess, C.H.
Beck, München, 2003, pp. 137–138 (author’s translation, original terminology: “Trennungs-
und Abstraktionsprinzip”).
528
See German Federal Constitutional Court, Decision of 20 09 2018 – 2 BvR 708/18 –, pa-
ra. 40; idem, Decision of 16.02.2006 – 2 BvR 2085/05 = BVerfG NStZ 2006, 46, 47; idem,
Decision of 02.07.2009 – 2 BvR 2225/08 = NJW 2009, 3225; German Federal Court of Jus-
tice, Judgment of 13.01.2011 – 3 StR 332/10 = BGHSt 56, 127, para. 13; Kai Ambos, Be-
weisverwertungsverbote, Duncker & Humblot, Berlin, 2010, p. 22; Jäger, 2003, p. 135, see
above note 527; Matthias Jahn, Beweiserhebung und Beweisverwertungsverbote im Span-
nungsfeld zwischen den Garantien des Rechtsstaates und der effektiven Bekämpfung von
Kriminalität und Terrorismus, Gutachten C, 67. Deutscher Juristentag, C.H. Beck, München,
2008, p. 36.
529
Thaman and Brodowski, 2020, p. 436, see above note 196.
530
Translation by ibid., p. 458.
531
Generally, see ibid., p. 436.

excluded from trial (non-use, or Verwertungsverbot), but it could still be

eventually used in the pre-trial stage as lead evidence. In other words, evi-
dence could be illegally obtained, but only lead to other evidence, and not
be used in court. 532 An exclusionary rule would thus only address the non-
use of evidence in court, and requires balancing that allows for the obtain-
ment of the evidence (even though it was illegally obtained). To provide an
example: in the case against Ieng Thirith before the ECCC, a statement was
made under torture. The Defence requested the co-investigating judges not
only to hold this statement inadmissible, but also to decide against its use
as ‘lead evidence’. With regard to the latter request, that is of interest at this
point, the judges decided:
there is nothing objectionable in using the information con-
tained in confessions as investigative leads to other sources of
information, even if the information within the confession is
ultimately deemed unreliable. A great deal of ‘lead evidence’
used in investigations is inherently unreliable and as such,
would not be relied on in the Closing Order. However, during
the course of the investigation, the Co-Investigating Judges
need not rule out any hypothesis and it is not necessary for
them to believe the assertions in the confessions to be true in
order to use them to develop new avenues for searching out
the truth, without this affecting the integrity of the proceed-
ings. 533
Another emanation of the separation hypothesis is the amended Rule
95 of the ICTY RPE. The former rule provided that evidence shall not be
admissible “if obtained by methods which cast substantial doubt on its reli-
ability or if its admission is antithetical to, and would seriously damage, the
integrity of the proceedings”. 534 As Calvo-Goller analysed, this rule “had
the merit to discourage human rights violations in the gathering of evidence
ab initio”. 535 The rule is reminiscent of the German ‘Beweismethoden-
532
About lead evidence, see Heinze, 2014, p. 455, see above note 110.
533
Extraordinary Chambers in the Courts of Cambodia (‘ECCC’), Office of the Co-
Investigating Judges, Prosecutor v. Ieng Thirith, Order on use of statements which were or
may have been obtained by torture, 28 July 2009, C002/19-09-2007-ECCC-OCIJ, para. 26
(https://www.legal-tools.org/doc/6uqmcu/). See also Fergal Gaynor et al., “Law of Evi-
dence”, in Göran Sluiter et al. (eds.), International Criminal Procedure, Oxford University
Press, 2013, p. 1029.
534
Emphasis added.
535
Karin N. Calvo-Goller, The Trial Proceedings of the International Criminal Court, Martinus
Nijhoff, Leiden, Boston, 2006, p. 97 (emphasis in the original).

verbote’, prohibiting certain methods of obtaining evidence. In 1995, on the

basis of proposals from the governments of the United Kingdom and the
US, 536 the rule was amended to add “which constitute a serious violation of
internationally protected human rights” after methods. The significance of
this amendment cannot be overstated: from now on, evidence obtained by
an illegal method could still be admitted at trial, unless it “seriously” dam-
aged the integrity of the proceedings. 537 Since Article 69(7) of the ICC
Statute is based on the amended Rule 95 of the ICTY RPE, the same ap-
plies regarding the former provision, as the Lubanga Trial Chamber con-
firmed:
Some scholars have suggested that any violation of interna-
tionally recognized human rights will necessarily damage the
integrity of proceedings before the ICC. This argument does
not take into account the fact that the Statute provides for a
“dual test”, which is to be applied following a finding that
there has been a violation. Therefore, should the Chamber
conclude that the evidence had been obtained in violation of
the Statute or internationally recognized human rights, under
Article 69(7) it is always necessary for it to consider the crite-
ria in a) and b), because the evidence is not automatically in-
admissible. It is important that artificial restrictions are not
placed on the Chamber’s ability to determine whether or not
evidence should be admitted in accordance with this statutory
provision. 538
However, the dual test of Article 69(7) of the ICC Statute has not al-
ways been envisaged for the Court’s exclusionary rules. In fact, in what
arguably became “the most important basis for the Rome negotiations”, 539
the Zutphen Report, the exclusionary rule was proposed without the second
536
Second Annual Report of the International Tribunal for the Prosecution of Persons Respon-
sible for Serious Violations of International Humanitarian Law Committed in the Territory
of the Former Yugoslavia since 1991, reprinted in ICTY Yearbook, p. 287, U.N. Doc.
S/1995/728, 23 August 1995 (https://www.legal-tools.org/doc/9a66a1/). For the amendment
see ICTY, Rules of Procedure and Evidence, 6 October 1995, IT/32/REV.6 (https://
www.legal-tools.org/doc/rkps3b/).
537
Calvo-Goller, 2006, p. 97, see above note 535; Ambos, 2009, p. 370, see above note 191.
538
ICC, Prosecutor v. Lubanga, Decision on the admission of material from the “bar table”, 24
June 2009, ICC-01/04-01/06-1981, para. 41 (fn. omitted, emphasis added) (https://
www.legal-tools.org/doc/c692ec/).
539

prong, allowing for the exclusion ab initio (the dual test was provided in
brackets, though):
Evidence obtained by means of violation of this Statute or of
other rules of international law [or by means which cast sub-
stantial doubt on its reliability] [or whose admission is anti-
thetical to, and would seriously damage, the integrity of the
proceedings] [or by means which constitute a serious violation
of internationally protected human rights] [or which have been
collected in violation of the rights of the defence] shall not be
admissible. 540
In other instances, an ICT might find a violation grave enough to find
that the illegally obtained evidence can neither be admitted in court nor
lead to other evidence. Thus, the separation hypothesis provides a tool to
disentangle the Gordian knot of procedural vs. substantive fairness.
17.5.2.3.2.3.3.2.2. Disclosure System
The separation hypothesis is a familiar basis for another evidentiary prob-
lem that provides useful guidance for the matter at hand: disclosure viola-
tions. An appellate court in England, for instance, referred to the “integrity
of the discovery process”, albeit in a civil case. 541 I have pointed this out
elsewhere: the position of a human rights non-governmental organisation
with respect to the confidentiality of witnesses and the information collect-
ed from them is troubling. 542 This created a problem that became visible at
the ICC: in the Lubanga case, the Prosecution obtained evidence from the
UN and certain NGOs pursuant to confidentiality agreements made under
Article 54(3)(e) of the ICC Statute. 543 Basically, there was nothing wrong
540
Article 62(5) Zutphen Draft, in M. Cherif Bassiouni and William A. Schabas (eds.), The
Legislative History of the International Criminal Court, vol. 2, second edition, Brill Nijhoff,
Leiden, Boston, 2016, pp. 620–621.
541
UK HL, Taylor & Anor. v. Director of the Serious Fraud Office & Ors., 29 October 1998,
[1998] 3 W.L.R. 1040, [1999] 2 A.C. 177, p. 191.
542
543
Article 18(3) of the ICC–UN Relationship Agreement provides that “the United Nations and
the Prosecutor may agree that the United Nations provide documents or information to the
Prosecutor on condition of confidentiality and solely for the purpose of generating new evi-
dence and that such documents shall not be disclosed to other organs of the Court or third
parties, at any stage of the proceedings or thereafter, without the consent of the United Na-
tions”, cited in Prosecutor v Lubanga, Decision on the consequences of non-disclosure of
exculpatory materials covered by Article 54(3)(e) agreements, 15 June 2008, ICC-01/04–
01/06-1401, para. 93 (‘Lubanga, 2008’) (https://www.legal-tools.org/doc/e6a054/). The
same rule applies to the UN peacekeeping mission, MONUC, in the Democratic Republic of

with that. As long as the amount of evidence obtained this way is relatively
minor, and the documents or information were received on a confidential
basis “solely for the purpose of generating new evidence” (lead evidence),
the Prosecution was allowed to do this. 544 It had no effect on the trial phas-
es, and thus paid tribute to the separation hypothesis. In other words, a few
documents and pieces of information can be obtained, coupled with an
agreement for non-disclosure, as long as the only purpose of receiving this
material is that it leads to other evidence. However, this was far from what
the Prosecution did. First, the Prosecution obtained more than fifty per cent
of its evidence on the basis of confidentiality agreements with NGOs. 545
The Prosecution itself admitted that its use of Article 54(3)(e) of the ICC
Statute to obtain evidence “may be viewed as excessive” and that “an ex-
cessive use of Art. 54(3)(e) would be problematic”. 546 Second, a great
amount of these documents were exculpatory material relevant to defence
preparation. 547 These documents usually have to be turned over to the de-
fence. 548 Third, and most importantly, the Prosecution did not use the Arti-
cle 54(3)(e)-agreements only for the purpose to obtain other evidence, for
example, as “springboard or lead potential”. 549 In fact, the Prosecution did
quite the opposite, as the Trial Chamber described:
Congo by way of Article 10(6) of the MONUC Memorandum of Understanding with the
ICC, which reads: “Unless otherwise specified in writing […], documents held by MONUC
that are provided by the United Nations to the Prosecutor shall be understood to be provided
in accordance with and subject to arrangements envisaged in Article 18, paragraph 3, of the
Relationship Agreement”, cited in Kai Ambos, “Confidential Investigations (Article 54(3)(e)
ICC Statute) vs. Disclosure Obligations: The Lubanga Case and National Law”, in New
Criminal Law Review, 2009, vol. 12, no. 4, p. 550. Generally, see Heinze, 2014, p. 454, see
above note 110.
544
Lubanga, 2008, para. 93, see above note 543.
545
ICC, Prosecutor v. Lubanga, Hearing Transcript, 13 March 2008, ICC-01/04-01/06-T-79,
pp. 5–6 (https://www.legal-tools.org/doc/bdf4aa/).
546
Cf. Lubanga, 2008, para. 32, see above note 543.
547
Ibid., para. 63 (“In this case over 200 documents, which the prosecution accepts have poten-
tial exculpatory effect or which are material to defence preparation, are the subject of
agreements of this kind. On 10 June 2008, the Chamber was told that there are ‘approxi-
mately’ 95 items of potentially exculpatory material and 112 items which are ‘material to de-
fence preparation’, pursuant to Rule 77, making a total of 207 items of evidence. Of these
207 items, 156 were provided by the UN”, fn. omitted). See also Heinze, 2014, p. 455, see
above note 110.
548
549

the prosecution’s general approach has been to use Article

54(3)(e) to obtain a wide range of materials under the cloak of
confidentiality, in order to identify from those materials evi-
dence to be used at trial (having obtained the information pro-
vider’s consent). This is the exact opposite of the proper use
of the provision, which is, exceptionally, to allow the prosecu-
tion to receive information or documents which are not for use
at trial but which are instead intended to ‘lead’ to new evi-
dence. 550
As a result of this, the Chamber opted for a stay of proceedings because of
an abuse of process. 551 I will go into this in detail in a moment. For now, it
suffices to say that the exclusion of evidence as a result of non-disclosure,
as it is the law in England, 552 was never even an option at the ICC and the
“drastic” and “exceptional” stay of the proceedings turned into the hot po-
tato of (Lubanga) case law. 553 More importantly, the Lubanga-disclosure-
scenario casts doubts on the practicability of the condition to only use ille-
gally obtained evidence as lead evidence: this condition is very much de-
pendant on the bona fide conduct of both prosecutors and investigators. It
might not be taken seriously when a court – as the ICC did – is reluctant to
follow through with an effective remedy, namely a stay of proceedings.
17.5.2.3.2.3.3.2.3. The Conceptual Flaw of the Separation Hypothesis
If the separation hypothesis provides a tool to disentangle the Gordian knot
of procedural vs. substantive fairness, this tool is indeed a sword (as in the
original legend involving Alexander the Great) rather than a sophisticated
strategy. As I see it, the separation hypothesis is a radical conceptual meas-
ure that comes at a price. This price is: a) the artificial separation of proce-
550
Ibid., para. 73.
551
Jenia Iontcheva Turner, “Policing International Prosecutors”, in New York University Jour-
nal of International Law & Policy, 2012, vol. 45, pp. 194 ff.: “The balancing approach rec-
ognizes that remedies such as dismissal, stay, retrial, and exclusion may impose significant
burdens on third parties and on the justice system, and it takes these burdens into considera-
tion when determining the optimal remedy”.
552
UK, Police and Criminal Evidence Act 1984, s. 78, see above note 250.
553
ICC, Prosecutor v. Lubanga, Appeals Chamber, Judgment on the appeal of the Prosecutor
against the decision of Trial Chamber I of 8 July 2010 entitled “Decision on the Prosecu-
tion’s Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermedi-
ary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU”,
8 October 2010, ICC-01/04-01/06-2582, para. 55 (https://www.legal-tools.org/doc/8f3b61/);
in more detail Heinze, 2014, pp. 443 ff., see above note 110.

dural stages that can easily be viewed as a unified system; and b) the false
premise that these stages are in fact closed.
Employing Damaška’s models of criminal procedure, the criminal
process needs to be viewed first and foremost holistically, independent of
its stages. Just because a procedural stage might appear in a certain setting
does not change the characterisation of the process as a whole, but quite the
contrary: procedural stages are usually “assigned methodological subtasks”
that differ from each other: “One stage can be devoted to the gathering and
organization of relevant material, another to the initial decision, still anoth-
er to hierarchical review, and so on, depending on the number of levels in
the pyramid of authority”. 554 At first sight, this argument appears to resem-
ble the familiar argument that different procedural stages may have differ-
ent “objectives and procedural influences”. 555 However, a procedural stage
does not present some sort of autonomous, closed, Luhmannesque 556 sys-
tem. 557 Damaška too doubted the autonomy of procedural stages by ac-
knowledging that a) in the hierarchical ideal procedural stages are just part
of a multi-layered hierarchy 558 (and are therefore – as already mentioned –
assigned to “methodological subtasks”); 559 and b) the existence of proce-
dural stages per se and the extent of their integration into the proceedings
are already characteristics of a certain procedural model. 560 Thus, to treat
procedural stages separately with regard to their objectives and characteris-
tics is already constitutive of a certain procedural model. To do so would
554
Damaška, 1986, pp. 47–48, see above note 412.
555
See, for example, Mark Klamberg, Evidence in International Criminal Trials, Martinus
Nijhoff, Leiden, Boston, 2013, p. 499.
556
See Niklas Luhmann, Soziologische Aufklärung 1: Aufsätze zur Theorie sozialer Systeme,
eighth edition, Springer, Cham, 2009, p. 226; Gunther Teubner, Recht als autopoietisches
System, Suhrkamp, Frankfurt am Main, 1989; Niklas Luhmann, “Introduction to Autopoietic
Law”, in Niklas Luhmann (ed.), Autopoietic Law: A New Approach to Law and Society, De
Gruyter, Berlin, 1988, pp. 1, 3; Luhmann, 2008, pp. 50 ff. (sixth edition, 2011, p. 111), see
above note 370; Brian H. Bix, Legal Theory, Oxford University Press, 2004, p. 18; Roger
Cotterrell, “Law in Social Theory and Social Theory in the Study of Law”, in Austin Sarat
(ed.), The Blackwell Companion to Law and Society, Blackwell, Malden, 2007, pp. 16, 22;
Clemens Mattheis, “The System Theory of Niklas Luhmann and the Constitutionalization of
the World Society”, in Goettingen Journal of International Law, 2012, vol. 4, no. 2, pp. 626
ff.
557
In a similar vein, see Campbell, Ashworth, and Redmayne, 2019, p. 10, see above note 107.
558
Damaška, 1986, pp. 47–48, see above note 412.
559
Emphasis added.
560
See Damaška, 1986, p. 57, see above note 412.

somehow beg the question. Think of the perception of the criminal process
in civil law vis-á-vis common law systems: it is certainly fair to say that all
domestic legal systems within the common law or civil law tradition con-
tain concentrated and ‘continuous’ proceedings, but they reach this concen-
tration differently. In proceedings of the civil law tradition, the trial is the
cumulation of a continuing criminal process, whereas many common law
legal systems conceive the trial as “a discrete and continuous event” and
differentiate more sharply between the trial and pre-trial phases of criminal
proceedings. 561 A good illustration for this difference is the fact, that Franz
Kafka’s “Der Prozess” is still translated as “The Trial” in English, instead
of “The Proceedings”, which would certainly be more accurate. 562
Furthermore, the ICC provides a reality check to the separation hy-
pothesis, since the investigation phase (read as formal investigations) 563
and the trial phase can hardly be separated. As I have commented on else-
where, 564 the ICC Appeals Chamber held that “the Prosecutor must be al-
lowed to continue his investigation beyond the confirmation hearing, if this
is necessary in order to establish the truth”. 565 The Appeals Chamber based
this decision on Article 54(1)(a) of the ICC Statute, which lays down that
the Prosecutor shall, “[i]n order to establish the truth, extend the investiga-
tion to cover all facts and evidence relevant to an assessment of whether
there is criminal responsibility under this Statute, and, in doing so, investi-
gate incriminating and exonerating circumstances equally”. 566 The Appeals
Chamber further recognised that “ideally, it would be desirable for the in-
vestigation to be complete by the time of the confirmation hearing” but this
561
Roberts and Zuckerman, 2010, p. 55, see above note 192.
562
Mirjan Damaška, “Models of Criminal Procedure”, in Zbornik Pravnog Fakulteta u Zagrebu,
2001, vol. 51, p. 490.
563
Ambos, 2016, pp. 342 ff., see above note 342.
564
565
ICC, Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber, Judgement on the Prosecu-
tor’s Appeal Against the Decision of Pre-Trial Chamber I entitled Decision Establishing
General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2)
and (4) of the Rules of Procedure and Evidence, 13 October 2006, ICC-01/04-01/06-568,
para. 52 (‘Lubanga, 2006’) (https://www.legal-tools.org/doc/7813d4/). This view has been
adopted by Trial Chamber IV in the case against Nourain and Jerbo Jamus, see ICC, Prose-
cutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Trial Cham-
ber, Prosecution’s Response to the Defence’s Oral Application of 19 April 2011, 4 May 2011,
ICC-02/05-03/09-140, para. 7 (https://www.legal-tools.org/doc/e5a6ea/).
566

was “not a requirement of the Statute”. 567 It, therefore, accepted the argu-
ment of the Prosecutor
that in certain circumstances to rule out further investigation
after the confirmation hearing may deprive the Court of sig-
nificant and relevant evidence, including potentially exonerat-
ing evidence – particularly in situations where the ongoing na-
ture of the conflict results in more compelling evidence be-
coming available for the first time after the confirmation hear-
ing.
As a consequence, the Prosecution may investigate as long as the trial has
not been concluded. I have expanded on this argument elsewhere. 568 The
rights of the defence to have adequate time and facilities for the preparation
of the trial could be safeguarded even if the investigation continues beyond
the confirmation of the charges. 569
This does not mean that viewing procedural stages separately to de-
cide about the admission or exclusion of evidence could not be a practical
compromise. Yet, this compromise comes at the price of dissolving the
criminal process as a system. As I have demonstrated, it is also questiona-
ble whether the separation hypothesis may work at the international level in
the face of the growing popularity of private investigations. Even the OTP
in the Lubanga case deliberately violated procedural rules to ensure the
success of its investigation. It can only be speculated that the Office was
probably rather certain that the ICC could not afford excluding the evi-
dence and eventually acquit Lubanga – for reasons of substantive fairness.
Argumentum a majore ad minus, a similar motivation might drive private
investigators. Duff et al. take this argument conceptually even further. They
distinguish two types of integrity (both types have been elaborated on ear-
lier in a different context): 570
First, a defendant might claim that it would be inconsistent to
continue the prosecution given the State’s conduct at the pre-
trial stage. Secondly, a defendant might claim that the moral
standing of the trial would be undermined by the prosecution
567
Ibid., para. 54.
568
In more detail Heinze, 2014, pp. 524 ff., see above note 110.
569
570
See above Section 17.5.2.2.

through the association between the trial and the wrongful

conduct pre-trial. 571
While the former “focuses in particular on conduct of state officials”, 572 the
latter addresses
wrongful behaviour without emphasising the need for that
conduct to be perpetrated by state officials. We have already
seen some examples of the latter claim where the former is not
at issue: there might be cases of private torture where the
rights of D are not violated by the state itself. Despite this,
there seem good grounds to exclude the evidence obtained,
even if those grounds are not as strong as cases in which tor-
ture is perpetrated by state officials. 573
Duff et al. call this “integrity as integration”: “the defendant must be
treated as a citizen not only at trial, but throughout the criminal process,
and that the normative validity of the trial rests on the validity of the state’s
conduct pre-trial”. 574 They too argue against the separation hypothesis,
meaning “that each part of the criminal justice process can be considered
independently. According to this thesis, faults at one stage of the process
need not infect decisions taken at later stages as long as there are independ-
ent remedies for those earlier faults”. 575
The rejection of the separation-hypothesis and the ensuing holistic
view on the process (for Duff et al., integrity as integration) is the contin-
uation of the holistic view on the addressee-issue. 576 Integrity as integration,
combined with the presumption that procedural rules are not merely ad-
dressed to actors but to systems and sub-systems respectively, allow for the
application of exclusionary rules to private conduct. The status of the per-
son collecting the evidence is not relevant for exclusionary rules, but the
investigatory context is (within which both public officials and private in-
dividuals act). More concretely: whether exclusionary rules apply does not
571
572
Ibid. (“It rests on the identification between the state and the actions of its officials such that
actions by officials in the course of investigation are to be treated as actions by the state,
which then have implications for the justification of future state actions”).
573
Ibid.
574
Ibid., p. 236.
575
Ibid.
576
See above Section 17.5.2.3.1.2.2.3.

depend on the investigator but on the existence of an investigation. 577 In

the words of Duff et al.: “Integrity as moral coherence involves the moral
coherence of treating certain actions, be they of officials or private citizens,
as part of the investigation of D”. 578 To separate trial and judgment as one
sub-system from the investigation as another sub-system is thus not only
artificial, it also betrays the communicative, moral and normative standards
of a trial that I described above. 579 The umbrella that protects a trial from
failing on legitimacy grounds is integrity, and eventually the rule of law
with its coherence and consistency elements. It applies to both private ac-
tions and actions of public officials. 580 The integrity principle “suggests
that there is normative continuity between the investigatory stage and the
criminal trial”. 581
Admittedly, the holistic view misses the practicability 582 advantage
of the separation-hypothesis. Yet, it is no less practical in the face of private
investigators and possible rights violations at the international level. By
simply asking whether there is an official investigation or not, it circum-
vents the somewhat Sisyphean task of categorising investigators into pri-
vate, public and so forth, which is especially useful in the face of an in-
creasing number of private investigators, security companies and so on. 583
This investigatory context can be as broad as the IIIM. 584
577
In a similar vein, see A. Duff et al., 2007, p. 239, see above note 145: “What distinguishes
the cases of private torture, private entrapment, private phone-tapping and the like from this
case is that those cases are investigatory”.
578
Ibid.
579
See above Sections 17.5.2.2.3.1. and 17.5.2.3.2.3.1. In the same vein, see ibid.
580
Ibid. (“[E]ven as far as private citizens are concerned, use of evidence wrongfully obtained
involves treating the actions of those private citizens as part of the investigation. The argu-
ment on this view is that the integrity principle, the principle that the trial cannot be de-
tached from the investigation in normative terms, applies to private actions as well as ac-
tions of public officials”).
581
Ibid., p. 243.
582
About practicability as an important value in evidence law, see Volk, 1978, p. 3, above note
334.
583
584

17.5.2.3.2.3.3.3. Applicability of the Rule of Law to the International

Level
To justify the applicability of the rule of law at the international level, a
recourse to Kant is anew fruitful.
Kant’s conception of human dignity is complemented by his vision
of a ‘perpetual peace’. I have disentangled the structure of Kant’s work To-
ward Perpetual Peace elsewhere. 585 In this vein, Kant’s Definitive Articles:
1. The Civil Constitution of Every State shall be Republican
(principle of civil right);
2. The Right of Nations shall be based on a Federation of
Free States (principle of international right);
3. Cosmopolitan Right shall be limited to Conditions of Uni-
versal Hospitality (principle of cosmopolitan right).
Perpetual Peace, p. 98.
The conceptual novelty of Kant’s doctrine of cosmopolitanism is that
he recognised “three interrelated but distinct levels of ‘right’, in the juridi-
cal senses of the term”. 586 Of interest for the rule of law 587 is the third level,
a world citizen law (Weltbürgerrecht) which entails the “right of hospitali-
ty” (Recht der Hospitalität), that is, that each citizen must not be treated in
a hostile way by another State. 588 With regard to the term hospitality, Kant
himself notes the oddity of the term in this context, and therefore remarks
that “it is not a question of philanthropy but of right”. 589 In other writings,
Kant clarified that the notion of hospitality and cosmopolitan right included
a wider range of rights, including “the right of citizens of the world to try
to establish community with all”, 590 “engage in commerce with any other,
585
586
Seyla Benhabib, Another Cosmopolitanism, Oxford University Press, 2006, p. 21.
587
In more detail Denninger, 1978, p. 69, see above note 255.
588
Ambos, 2013, pp. 293, 305–6, see above note 163.
589
Immanuel Kant, Toward Perpetual Peace and Other Writings on Politics, Peace, and Histo-
ry, Yale University Press, New Haven, 2006, p. 105; Benhabib, 2006, pp. 21–22, see above
note 586. For a detailed analysis see Jasmine K. Gani, “The Erasure of Race: Cosmopolitan-
ism and the Illusion of Kantian Hospitality”, in Millennium, 2017, vol. 45, no. 3, pp. 425 ff.;
Pauline Kleingeld, “Kant’s Cosmopolitan Law: World Citizenship for a Global Order”, in
Kantian Review, 1998, vol. 2, p. 75.
590
Kant, 1991, p. 158, see above note 163 (emphasis in the original); Wade L. Huntley, “Kant’s
Third Image”, in International Studies Quarterly, 1996, vol. 40, no. 1, p. 51.

and each has a right to make this attempt without the other”, 591 and a free
“public use of man’s reason”. 592 For Benhabib, therefore, human rights
covenants can be qualified as cosmopolitan norms. 593 Günther follows
from Kant’s Third Definitive Article, that the application of public human
rights is a necessary precondition for a permanent peace. 594 In sum, with
this conception, Kant laid the foundations for all current conceptions of
human dignity and world peace, an “international rule of law”. 595 Even
though according to the Second Definitive Article, international law is cre-
ated through treaty obligations between States, cosmopolitan norms move
the individual as a moral and legal person in a worldwide civil society into
the centre of attention. 596
17.5.2.3.2.4. Intermediate Conclusion
In this section, the rationales for exclusionary rules were applied to the ex-
tra-investigatory context. After questioning the usefulness of the deterrence
theory, both remedy theory and the integrity of the process provide an im-
591
Kant, 1991, p. 158, see above note 163 (fn. omitted).
592
Immanuel Kant, “An Answer to the Question: What is ‘Enlightenment?’”, in Hans Reiss
(ed.), Immanuel Kant, Political Writings, H.B. Nisbet (trans.), Cambridge University Press,
1991, p. 55; Garrett Wallace Brown, “Kantian Cosmopolitan Law and the Idea of a Cosmo-
politan Constitution”, in History of Political Thought, 2006, vol. 27, no. 4, pp. 661, 664;
Gani, 2017, p. 431, see above note 589; Jürgen Habermas, Politische Theorie, Philoso-
phische Texte, vol. 4, Suhrkamp, Frankfurt am Main, 2009, p. 321: “Die Gefahr des Despot-
ismus, die in allen von der Obrigkeit bloß auferlegten Gesetzen brütet, kann einzig durch das
republikanische Verfahren einer fairen Meinungs- und Willensbildung aller potentiellen
Betroffenen vorgebeugt werden”.
593
Seyla Benhabib, “Claiming Rights across Borders”, in American Political Science Review,
2009, vol. 103, no. 4, pp. 691, 696. Against this view with a narrow reading of hospitality,
Vischer, 2017, p. 325, see above note 164: “Kant’s cosmopolitan law is far from proclaiming
a firm catalogue of human rights or even a world constitution. It only asserts in a rather
moral than legal tone a minimal guarantee of peaceful intercourse, and explicitly presumes
the ongoing asymmetry of host and visitor”.
594
See also Günther, 2009, p. 84, see above note 498. About Kant’s two-step-justification see
Heinze, 2018, p. 371, see above note 487.
595
Huntley, 1996, pp. 45, 49, see above note 590; Alec Stone Sweet, “A Cosmopolitan Legal
Order: Constitutional Pluralism and Rights Adjudication in Europe”, in Global Constitu-
tionalism, 2012, vol. 1, no. 1, pp. 53 (58); Jorrik Fulda, “Eine legitime Globalverfassung?
Die US-Hegemonie und die weltgesellschaftlich gerechte Vollendung des Kantischen Pro-
jektes”, in Archiv des Völkerrechts, 2016, vol. 54, no. 3, pp. 334, 345. About the role of hu-
man dignity in international human rights law and international criminal law, see Schmahl,
2018, pp. 79 ff., above note 445.
596
Benhabib, 2009, pp. 691, 695, see above note 593.

portant theoretical basis for the exclusion of illegally obtained evidence in

the extra-investigatory context. The argumentative force and even effec-
tiveness of the remedy theory at the international level are underlined by
the central role of human rights. The human rights language of Article 21(3)
of the ICC Statute is translated into the admissibility provision of Article 69.
Here, integrity from the perspective of the suspect is visibly enshrined in
paragraph 7: “Evidence obtained by means of a violation of this Statute or
internationally recognized human rights shall not be admissible if […]
[t]he admission of the evidence would be antithetical to and would serious-
ly damage the integrity of the proceedings”. 597 At the same time, the integ-
rity of the person (‘internationally recognized human rights’) is interlocked
with integrity from the perspective of the process.
Yet, at the heart of exclusionary rules within the extra-investigatory
context lies the integrity of international criminal procedure itself. Illegally
obtained evidence by private individuals questions the moral authority of
the verdict and its legitimacy. The evidence may be unreliable. Admitting
such evidence might violate the rule of law. The basis of the integrity of the
process is fairness. Especially the juxtaposition of procedural and substan-
tive fairness is vital for private investigations. A conviction that is based on
unreliable evidence is not substantially fair. The two dimensions of fair-
ness – procedural fairness vs. substantive fairness – affect a judgment like
two parents their child. Within this rationale, integrity becomes a “proxy,
synonym or placeholder” 598 for procedural values such as fairness, due
process, natural justice or judicial legitimacy. Moreover, it would be detri-
mental to the expressivist and communicative function of a public trial, if a
conviction rendered by an international tribunal was based on illegally ob-
tained evidence – irrespective of the status of the person who obtained the
evidence.
Every endeavour of applying the systems theory by Luhmann and
Teubner eventually passes over to the bifurcated decision of how narrow
the systems and sub-systems should be. The criminal process with its vari-
ous stages is especially prone to such an endeavour. Strictly speaking, the
investigatory context (sub-system 1) could easily be, and is often, separated
from the trial process (sub-system 2). This separation hypothesis has prac-
tical advantages on the international level: ICTs could, if they found that
597
Emphasis supplied.
598

evidence had been illegally obtained, declare that, even if this evidence
must be excluded from trial, it could still be obtained and eventually be
used in the pre-trial stage as lead evidence. An exclusionary rule would
thus only address the non-use of evidence in court and requires balancing
that allows for obtainment of the evidence (even though it was illegally ob-
tained).
Yet, the separation hypothesis must be rejected on the international
level. It artificially separates procedural stages that can easily be viewed as
a unified and is based on the false premise that procedural stages are in fact
closed. The rejection of the separation-hypothesis and the ensuing holistic
view on the process (Duff et al.’s integrity as integration) is the continua-
tion of the holistic view on the addressee-issue. Integrity as integration,
combined with the presumption that procedural rules are not merely ad-
dressed to actors but to systems and sub-systems respectively, allow for the
application of exclusionary rules to private conduct. Whether exclusionary
rules apply does not depend on the investigator but on the existence of an
investigation. 599
Last but not least, the Lubanga disclosure scenario casts doubt on the
practicability of the condition to only use illegally obtained evidence as
lead evidence: this condition is very much dependant on the bona fide con-
duct of both prosecutors and investigators. It might not be taken seriously
when a court is reluctant to follow through with an effective remedy, that is,
a stay of proceedings, as the ICC declared. These remedies and conse-
quences and their effectiveness to ensure the integrity of the process shall
be briefly analysed in the following section.
17.5.2.4. Consequences and Remedies: Exclusion vs. Other Remedies
As mentioned at the outset, integrity as an element and value in the deci-
sion about illegally obtained evidence by private individuals may lead to
several consequences. For the sake of better following the arguments, I
have decided to single out – by way of example – the exclusion of evidence
as the consequence for a violation of the integrity element (in whatever
form). It goes without saying that there are other consequences. Their mere
existence has a considerable influence on the decision about whether to
599
In a similar vein, see A. Duff et al., 2007, p. 239, above note 145: “What distinguishes the
cases of private torture, private entrapment, private phone-tapping and the like from this
case is that those cases are investigatory”.

exclude evidence from a trial or not. Rogall 600 and others 601 have made this
point concerning the balancing exercise within the exclusion decision: the
exclusion or non-use of evidence is one, but not necessarily the most apt
reaction to an illegal gathering of evidence. According to them, whether
this response is the appropriate remedy depends more on systemic aspects
than on the individual situation of the accused. Thus, integrity can also be
used to rationalise a stay of proceedings. It is the broader question of how
to address procedural violations committed in the pre-trial phase of the
proceedings. I will provide a brief sketch of those judicial responses, since
there are others who have provided profound studies of the matter, espe-
cially recently Pitcher. 602 Other remedies involve financial compensa-
tion, 603 sentence reductions, 604 integrity testing and integrity units. Finan-
cial compensation and sentence reductions provide enough material for an-
other chapter and will thus be neglected altogether. Integrity testing and
integrity units need to be illuminated briefly since their existence is indeed
an important check for both prosecutors and persons working in law en-
forcement.
Some prosecutors have set prosecution integrity units within their of-
fices, to provide an internal review when they believe it is warranted. 605
The units usually work closely together with innocence projects. Some
states in the US have created so-called ‘integrity testing’, where a police
officer “is placed in a position where he or she might be tempted to break a
rule or a law and monitored to see what he or she will do”. 606 As Pollock
explains: “Integrity testing is like undercover work in that unsuspecting
600
Klaus Rogall, “Gegenwärtiger Stand und Entwicklungstendenzen der Lehre von den straf-
prozessualen Beweisverboten”, in Zeitschrift für die gesamte Strafrechtswissenschaft, 1979,
pp. 31–35; see also Klaus Rogall, “Über die Folgen der rechtswidrigen Beschaffung des
Zeugenbeweises im Strafprozeß”, in Juristenzeitung, 1996, 947–948; for a further summary
see Thaman and Brodowski, 2020, p. 451, see above note 196.
601
See Jürgen Wolter, “Beweisverbote und Umgehungsverbote zwischen Wahrheitserforschung
und Ausforschung”, in Claus Wilhelm Canaris et al. (eds.), 50 Jahre Bundesgerichtshof,
Festgabe aus der Wissenschaft, Band IV, C.H. Beck, München, 2000, pp. 963, 985–986;
Greco, 2018, pp. 512 ff., see above note 203; see, generally, Thaman and Brodowski, 2020,
602
Pitcher, 2018, see above note 192.
603
Ibid., pp. 298 ff.
604
Ibid., pp. 302 ff.
605
Turvey and Cooley, 2014, p. 368, see above note 180.
606
Pollock, 2019, p. 204, see above note 179.

officers are tempted with an opportunity to commit an illegal or corrupt act,

such as keeping a found wallet or being offered a bribe”. 607
17.5.2.4.1. Exclusion: Balancing
A decision about the exclusion of evidence is never a black and white deci-
sion. The entire criminal process is about balancing rights and interests 608
and so is the decision about excluding evidence. In fact, the exclusion of
evidence is perceived “as playing an integral role in ensuring constitutional
and judicial integrity in the criminal justice system as a whole, as well as
promoting constitutional compliance by the police and prosecutorial ser-
vices”. 609 It is especially this decision that requires a specific justification
for the exclusion of evidence. As I have illustrated, this is easier said than
done – especially because it seems all too easy to let the goals of Interna-
tional Criminal Justice outweigh an alleged minor rights violation commit-
ted by a private individual. 610 Thus, even the law at ICTs is fragmented in
that regard: the law of the ad hoc Tribunals provides explicitly for exclu-
sionary rules in case of serious fair trial violations, while the ICC regime
only takes such considerations into account with regard to admissibility
and relevance of the respective evidence or generally as an admissibility
criterion. 611 Last but not least, there are instances where the Chamber is
obliged to ‘exclude’ (“not consider”) the evidence (“shall”) 612 and where
this is within its discretion (“may”). 613 Especially in the latter case, re-
course to rationales of exclusionary rules is useful. Yet, the rationales
themselves must not be taken as a dogma. 614 After all, they are theories. 615
For instance, the remedy rationale, taken in its pure form, can be
607
Ibid.
608
609
610
Lüderssen made this argument, albeit on a more conceptual level, see Klaus Lüderssen,
“Was ist das – ein ‘Rechtsstaat’?”, in Erhard Denninger and Klaus Lüderssen (eds.), Polizei
und Strafprozeß im demokratischen Rechtsstaat, Suhrkamp, Frankfurt a. M., 1978, p. 95.
611
Cf. ICC Statute, Article 69(7), see above note 182: “shall not be admissible”.
612
Cf., for example, ICTY RPE, Rule 95, see above note 341; MICT RPE, Rule 117, see above
note 515 and ICC Statute, Article 69(7), see above note 182.
613
Cf., for example, ICTY RPE, Rule 89(D), see above note 341 and MICT RPE, Rule 105(D),
see above note 515 and ICC Statute, Article 69(4), see above note 182.
614
The value of a dogma is that it applies to a wide range of cases and instance. Those cases
and instance thus do not have to be rationalized de novo, every time they occur, see Volk,

a very crude tool, effectively allowing the court no discretion

to vary the remedy according to the harm done to the accused.
The remedy is either granted – and the evidence thus exclud-
ed – or the remedy is refused – and the evidence is admitted.
There is no scope for adjusting the remedy according to the
circumstances of the case, as in the case of a civil wrong, for
instance, where there is scope for infinite variation of the
damages awarded. 616
As a result, national courts have developed sophisticated balancing
exercises to be used upon an exclusionary decision. Thaman and
Brodowski, in a recent and illuminating study, have summarised these fac-
tors with a special view to the US and Germany: 617
the gravity of objective and subjective misconduct, such as the
clear lack of a (sufficient) legal basis for the specific act of
gathering evidence; a wilful, widespread and/or arbitrary mis-
use of state powers, or a wilful, widespread and arbitrary cir-
cumvention of a requirement of ex-ante judicial authorization
[…] the ratio legis of the protected norm, including whether
the “legally protected sphere” of the defendant has been af-
fected; the quality of the evidence in light of the misconduct,
the existence of supporting evidence; and a hypothetical clean
path doctrine (i.e., whether the evidence could have been
gathered legally); the gravity of the crime being prosecuted, in
particular based on the guilt of the defendant and the expected
punishment; and systemic effects on society’s trust in criminal
justice and in the lawfulness of state actions.
It needs to be emphasised that Thaman and Brodowski’s criteria are
descriptive and not prescriptive. It is also not surprising that Article 69(7)(b)
of the ICC Statute does not require any degree of “damage” to the integrity
of the proceedings; instead, this integrity must be “seriously” damaged,
which thus involves a judgment of degree by the respective judge(s). 618
615
Canaris perceives the use of a ‘theory’ as a rather classifying and semantic exercise, see
Claus-Wilhelm Canaris, “Funktion, Struktur und Falsifikation juristischer Theorien”, in Ju-
ristenzeitung, 1993, p. 379: “[Theorie] ermöglicht die begriffliche und/oder dogmatische
Einordnung der einschlägigen Problemlösung(en)”).
616
P. Duff, 2004, p. 165, see above note 193.
617
Thaman and Brodowski, 2020, pp. 451–452, see above note 196 (fn. omitted, emphasis in
the original). See also Jahn, 2008, pp. 46–47, see above note 528.
618
Pitcher, 2018, p. 327, see above note 192.

Drawing on my argument about integrity as integration (following

Duff et al.), the same test applies to the extra-investigatory context. Surely,
it is fair to say that there is a stronger reason to exclude evidence once a
State authority committed the rights violation. 619 Yet, this is more of a
yardstick than a rule set in stone. Generally, what applies to State authori-
ties also applies to private individuals in the context of obtaining evidence:
“the trial provides the normative standards that ought to govern the investi-
gation of public wrongs. In using evidence wrongfully obtained by private
citizens in their investigations of public wrongdoing, the trial cannot dis-
tance itself from those wrongs”. 620
17.5.2.4.2. Stay of Proceedings
The most drastic consequence of illegally obtained evidence is a stay of
proceedings. 621 As Roberts eloquently puts it: “Even more closely than its
natural affinity with evidentiary exclusion, judicial integrity-talk is bound
up with permanent stays of proceedings on the grounds of abuse of pro-
cess”. 622 In a seminal decision that became a yardstick for cases that fol-
lowed, the ICTR Appeals Chamber in Barayagwiza recognised that a stay
of proceedings may be imposed, among other things, “where in the circum-
stances of a particular case, proceeding with the trial of the accused would
contravene the court’s sense of justice, due to pre-trial impropriety or mis-
conduct”. 623 The “sense of justice” can be understood as the notions of
fairness as previously defined. It could even easily be categorised as ‘sub-
stantive fairness’, if the Chamber had merely formulated “sense of justice”.
Yet, it clarified “the court’s sense of justice”. Thus, the criterion seems just
to be a reformulation of the integrity concept. This reading is supported by
a stay of proceedings decision at the ICTY in the case of Stanišić and
Župljanin, where the Appeals Chamber remarked:
The doctrine of “abuse of process” allows a court to decline to
exercise jurisdiction either because it will be impossible to
give the accused a fair trial or because it offends the court’s
sense of justice and propriety to try the accused in the circum-
619
620
Ibid.
621
About the difference between a permanent and a conditional stay of proceedings Pitcher,
2018, pp. 305 ff., see above note 192.
622
623
Barayagwiza decision, 1999, Introduction, para. 77, see above note 304.

stances of a particular case. The question in cases of abuse of

process is not whether it is “necessary” for a court to issue an
interlocutory decision terminating proceedings […], but
whether a court should continue to exercise jurisdiction over a
case in light of serious and egregious violations of the ac-
cused’s rights that would prove detrimental to the court’s in-
tegrity. The discretionary power of a court to stay or terminate
proceedings by reason of abuse of process applies during the
trial phase of a case, and is mostly concerned with prosecuto-
rial misconduct, since its main purposes are to prevent wrong-
ful convictions and preserve the integrity of the judicial sys-
tem. 624
The ICC Chambers have had several opportunities to comment on
the abuse of process doctrine. 625 On the one hand, they have recognised
that the principle of abuse of process leading to the court’s authority to stay
proceedings is not provided for in the Statute, nor is it “generally recog-
nised as an indispensable power of a court of law”. 626 On the other hand,
however, they have stated that the ICC Statute safeguards the rights of the
suspect and the accused, especially under Articles 55 and 67 of the ICC
Statute. Drawing on Article 21(3) of the ICC Statute, 627 the Appeals Cham-
ber in Lubanga pointed out that “if no fair trial can be held, the object of
the judicial process is frustrated and the process must be stopped”. 628 How-
ever, not every breach of the rights of the suspect and/or the accused is tan-
tamount to an abuse of process entailing the need to stay the proceed-
624
ICTY, Prosecutor v. Stanišić and Župljanin, Decision on Mićo Stanišić’s Motion Requesting
a Declaration of Mistrial and Stojan Župljanin’s Motion to Vacate Trial Judgement, 2 April
2014, IT-08-91-A, para. 35 (fn. omitted) (https://www.legal-tools.org/doc/494e31/).
625
ICC, Prosecutor v. Callixte Mbarushimana, Pre-Trial Chamber, Decision on the “Defence
request for a permanent stay of proceedings”, 1 July 2011, ICC-01/04-01/10-264, p. 4, with
further references (‘Mbarushimana, 2011’) (https://www.legal-tools.org/doc/27c6ab/); ICC,
Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Trial
Chamber, Decision on the defence request for a temporary stay of proceedings, 26 October
2012, ICC-02/05-03/09-410 (https://www.legal-tools.org/doc/414cc4/). Recently ICC, Pros-
ecutor v. Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), Decision on Defence Re-
quest for a Stay of Proceedings, 16 October 2020, ICC-02/05-01/20-186, paras. 7 ff.
(https://www.legal-tools.org/doc/1nq46m/).
626
Lubanga, 2006, para. 35, see above note 114; Mbarushimana, 2011, p. 4, see above note 625.
627
Lubanga, 2006, paras. 36–37, see above note 114; Mbarushimana, 2011, p. 4, see above note
625.
628

ings. 629 Only gross violations, which make it impossible for the accused “to
make his/her defence within the framework of his rights” justify the pro-
ceedings being stayed. 630 Thus, as has been stated in the case law of the
Court, 631 behaviours which may trigger a stay of proceedings are those that
entail unfairness of such a nature that it cannot be resolved, rectified or cor-
rected in the subsequent course of the proceedings. 632
One form of this ‘behaviour’ has included disclosure violations by
the Prosecution. The Trial Chamber imposed a stay of proceedings because
of an abuse of process relating to disclosure violations in connection with
Article 54(3)(e) of the ICC Statute. 633 The Chamber imposed the stay of
proceedings because of an abuse of process, also labelled as the “balancing
approach”. 634 It stated that “[t]he prosecution’s approach constitutes a
wholesale and serious abuse, and a violation of an important provision
which was intended to allow the prosecution to receive evidence confiden-
tially, in very restrictive circumstances”. 635 Thus, the Trial Chamber issued
a stay of the proceedings, because “the trial process has been ruptured to
such a degree that it is now impossible to piece together the constituent el-
ements of a fair trial” 636 and this “right to a fair trial – which is without
doubt a fundamental right – includes an entitlement to disclosure of excul-
patory material”. 637 The Appeals Chamber later confirmed the stay, 638 but
629
Mbarushimana, 2011, p. 4, see above note 625.
630
Lubanga, 2006, para. 39, see above note 114; Mbarushimana, 2011, pp. 4–5, see above note
625.
631
See, for example, Lubanga, 2008, para. 89, see above note 543.
632
Mbarushimana, 2011, p. 5, see above note 625.
633
See above Section 17.5.2.3.2.3.3.2.2. See, generally, Heinze, 2014, pp. 458 ff., see above
note 110.
634
Turner, 2012, see above note 551.
635
Lubanga, 2008, para. 73, see above note 543; see, generally, Turner, 2012, pp. 179 ff., above
note 551.
636
637
Ibid., para. 77. With ponderous words, the Chamber continued (para. 91):
This is an international criminal court, with the sole purpose of trying those charged
with the ‘most serious crimes of concern to the international community as a whole’ and
the judges are enjoined, in discharging this important role, to ensure that the accused re-
ceives a fair trial. If, at the outset, it is clear that the essential preconditions of a fair trial
are missing and there is no sufficient indication that this will be resolved during the trial
process, it is necessary – indeed, inevitable – that the proceedings should be stayed.
638
ICC, Prosecutor v. Lubanga, Appeals Chamber, Judgment on the appeal of the Prosecutor
against the decision of Trial Chamber I entitled “Decision on the consequences of non-

made clear that the Trial Chamber “intended to impose a stay that was con-
ditional and therefore potentially only temporary”. 639
17.5.2.4.2.1. The Intra-Investigatory Context: Lubanga and
Intermediaries
Even more relevant for the purpose of this chapter is an instance where an-
other stay was imposed: when during the proceedings against Lubanga the
suspicion arose that certain so-called intermediaries had bribed various per-
sons to prepare false evidence for alleged former child soldiers. 640 Interme-
diaries are “local organisations and/or private persons supporting the OTP
by assisting in the collection of evidence and communication with potential
witnesses, given their familiarity with the cultural, geographic and other
characteristics of the region where alleged crimes took place”. 641 In the
case against Lubanga about twenty-three intermediaries assisted the OTP,
seven of whom were used to contact approximately half of the witnesses
the OTP called to give evidence against Lubanga. 642 Usually, both the co-
operation with intermediaries and their use to create incriminating evidence
are common and perfectly legal. Moreover, the Chamber deemed it appro-
priate that the identities of the intermediaries would not have to be dis-
disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the applica-
tion to stay the prosecution of the accused, together with certain other issues raised at the
Status Conference on 10 June 2008”, 21 October 2008, ICC-01/04-01/06-1486 (https://
www.legal-tools.org/doc/485c2d/).
639
Ibid., para. 75, continuing: “The Trial Chamber acknowledged, however, that circumstances
might change, in particular should the information providers alter their position and give
their consent to the disclosure of the documents in question.”
640
ICC, Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber, Transcript of hearing, 13 March
2009, ICC-01/04-01/06-T-146-Red-ENG, p. 3, lines 11-18 (https://www.legal-tools.org/doc/
b0e64b/) (“[…] the Defence explained that they wished to explore the possibility that certain
people have participated in preparing false evidence for alleged former child soldiers, and in
this case that [143] helped the witness to invent a false story or a false identity, or both.”),
cited in Prosecutor v. Thomas Lubanga Dyilo, Redacted Decision on Intermediaries, 31 May
2010, ICC-01/04-01/06-2434-Red2, para. 16 (‘Lubanga, 2010’) (https://www.legal-
tools.org/doc/8b5694/).
641
See ICC Monitor, no. 41, November 2010 – April 2011, p. 9; Ambos, 2016, p. 122, see
above note 342; Ambos, 2013, p. 31, see above note 452. The ASP broadly defines an inter-
mediary “as an individual or entity that facilitates contact between the Court and a witness,
victim or other source of information.”, see ASP, Resolution ICC-ASP/9/Res.5, Adopted at
the 5th plenary meeting, 10 December 2010, Annex, para. 2 with fn. 3 (https://www.legal-
tools.org/doc/a399fa/).
642

closed to the Defence, if particular material required protection and if the

statement or document, in its redacted form, is sufficiently comprehensible
for the purposes of dealing with trial issues. 643 Yet, once intermediaries
commit illegal acts, there is an issue of illegally obtained evidence in an
intra-investigatory context.
On 15 March 2010, the Chamber indicated that the Defence was enti-
tled to know the names of certain intermediaries. 644 Balancing the need for
intermediary-protection on the one hand and the rights of the accused on
the other, the Trial Chamber adopted an approach under which, among oth-
er things, the intermediary’s identity is disclosable under Rule 77 of the
ICC RPE 645 (if “prima facie grounds have been identified for suspecting
that the intermediary in question had been in contact with one or more wit-
nesses whose incriminating evidence has been materially called into ques-
tion, for instance by internal contradictions or by other evidence”). 646 Be-
643
Cf. ibid., para. 6.
644
ICC, Prosecutor v. Thomas Lubanga Dyilo, Transcript of hearing, 15 March 2010, ICC-
01/04-01/06-T-261-Red3-ENG, p. 6, line 18 to p. 7, line 8 (https://www.legal-tools.org/doc/
d5ee58/) cited in ibid., para. 41.
645
About ICC, Rules of Procedure and Evidence, 9 September 2002, Rule 77 (‘ICC RPE’)
(https://www.legal-tools.org/doc/8bcf6f/); see Heinze, 2014, pp. 355 ff., above note 110.
646
Lubanga, 2010, para. 139, see above note 640. The entire approach is:
a. Given the markedly different considerations that apply to each intermediary (or oth-
ers who assisted in a similar or linked manner), disclosure of their identities to the
defence is to be decided on an individual-by-individual basis, rather than by way of
a more general, undifferentiated approach.
b. The threshold for disclosure is whether prima facie grounds have been identified for
suspecting that the intermediary in question had been in contact with one or more
witnesses whose incriminating evidence has been materially called into question, for
instance by internal contradictions or by other evidence. In these circumstances, the
intermediary’s identity is disclosable under Rule 77 of the Rules. [...]
c. The identities of intermediaries (or others who assisted in a similar or linked manner)
who do not meet the test in b. are not to be disclosed.
d. Disclosure of the identity of an intermediary (or others who assisted in a similar or
linked manner) is not to be effected until there has been an assessment by the VWU,
and any protective measures that are necessary have been put in place.
e. The identities of intermediaries who did not deal with trial witnesses who gave in-
criminating evidence are not to be revealed, unless there are specific reasons for
suspecting that the individual in question attempted to persuade one or more indi-
viduals to give false evidence or otherwise misused his or her position. Applications
in this regard will be dealt with by the Chamber on an individual basis.
f. The threshold for calling intermediaries prior to the defence abuse submissions is
that there is evidence, as opposed to prima facie grounds to suspect, that the individ-
ual in question attempted to persuade one or more individuals to give false evidence.

cause “some intermediaries may have attempted to persuade individuals to

give false evidence”, those prima facie grounds have been identified. As a
consequence, the Trial Chamber ordered the Prosecution to disclose confi-
dentially to the Defence the identity (“names and other identifying infor-
mation” plus the “professional background”) of certain intermediaries. 647
That the proceedings had to be stayed did not – at least not directly –
result from the mere fact that the Chamber discovered that certain interme-
diaries, whose identity did justifiably not have to be revealed, had bribed
witnesses to give false testimony. Instead, it resulted from the non-
compliance of the Prosecution with the disclosure order just mentioned. 648
The Prosecution quite frankly remarked, after having missed the deadline
by the Trial Chamber to comply with the order: “The Prosecution consider
[sic] that it cannot disclose the information in the current circumstances,
but will consult with the VWU as to whether the security situation allows
for disclosure now”. They continued: “The Prosecution is bound by auton-
omous statutory duties of protection that it must honour at all times”. 649
From the perspective of remedies, the refusal of the Prosecution to
implement the Court’s order is the fact that distinguishes this stay of pro-
ceedings from the earlier stay caused by an incorrect reading of Article
54(3)(e) of the ICC Statute. This refusal had – in the view of the Court – a
twofold impact: first, it had an impact on the assessment of evidence by the
Court, and second, it had an impact on the administration of justice. Both
impacts were described and provided with an explicit warning by the – no-
ticeably enraged – Chamber in sharp language. With regard to the former,
the Chamber warned: “However, if the identifying information for 143,
despite the orders of the Chamber, is not disclosed to the defence, then the
Chamber will need to scrutinize the impact of this eventuality in the con-
text of its overall assessment of the evidence in the case, and the fairness of
647
648
ICC, Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber, Redacted Decision on the Prose-
cution’s Urgent Request for Variation of the Time-Limit to Disclose the Identity of Interme-
diary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU,
8 July 2010, ICC-01/04-01/06-2517-RED, paras. 12, 13 (‘Decision on the Prosecution’s Ur-
gent Request’) (https://www.legal-tools.org/doc/cd4f10/).
649
ICC, Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber, Prosecution’s Urgent Request
for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively
to Stay Proceedings Pending Further Consultations with VWU, 7 July 2010, ICC-01/04-
01/06-2515, paras. 1, 3 (https://www.legal-tools.org/doc/5e2ba5/), cited in ibid., para. 13.

the proceedings against the accused”. 650 This is an astonishing statement.

The warning that the Chamber “will need to scrutinize the impact of this
eventuality in the context of its overall assessment of the evidence in the
case” mirrors the language of exclusionary rules. As I have shown else-
where, 651 in England and Wales s. 87 PACE provides for the exclusion of
evidence as a remedy for non-disclosure “if it appears to the court that,
having regard to all the circumstances, including the circumstances in
which the evidence was obtained, the admission of the evidence would
have such an adverse effect on the fairness of the proceedings that the court
ought not to admit it”. 652 The use of intermediaries by the Prosecution qual-
ifies this context as an intra-investigatory one.
17.5.2.4.2.2. The Extra-Investigatory Context: Nikolić and Tolimir
A situation of illegal actions of private individuals in the extra-
investigatory context 653 occurred before the ICTY in the case against Ni-
kolić. The accused, living in what was then the Federal Republic of Yugo-
slavia, “was taken forcibly and against his will and transported into the ter-
ritory of Bosnia and Herzegovina […] by unknown individuals having no
connection with SFOR and/or the Tribunal”. 654 In Bosnia and Herzegovina,
Nikolić was then arrested and detained by the Stabilisation Force (‘SFOR’),
and delivered to the ICTY. 655 In its evaluation of the situation, the Appeals
Chamber invoked the test in Barayagwiza previously mentioned. 656 It also
stressed that, just because the unknown individuals could not be attributed
to SFOR or the Prosecution, it “does not mean that such acts do not raise
concerns with the Chamber”. 657 And indeed, it remarked with rather clear
words:
[T]he Chamber holds that, in a situation where an accused
[person] is very seriously mistreated, maybe even subjected to
650
Decision on the Prosecution’s Urgent Request, para. 20, see above note 648 (emphasis add-
ed).
651
652
653
For more examples see Aksenova, Bergsmo and Stahn, 2020, pp. 9 ff., see above note 1.
654
ICTY, Prosecutor v. Nikolić, Decision on Defence Motion Challenging the Exercise of Ju-
risdiction by the Tribunal, 9 October 2002, IT-94-2-PT, para. 21 (https://www.legal-
tools.org/doc/352e8c/).
655
Ibid., para. 21.
656
Ibid., para. 111.
657
Ibid., para. 113.

inhuman, cruel or degrading treatment, or torture, before be-

ing handed over to the Tribunal, this may constitute a legal
impediment to the exercise of jurisdiction over such an ac-
cused [person]. This would certainly be the case where per-
sons acting for SFOR or the Prosecution were involved in
such very serious mistreatment. But even without such in-
volvement this Chamber finds it extremely difficult to justify
the exercise of jurisdiction over a person if that person was
brought into the jurisdiction of the Tribunal after having been
seriously mistreated. 658
Citing Barayagwiza, the Chamber decided that it was thus “irrelevant
which entity or entities were responsible for the alleged violations of the
Appellant’s rights”. 659 In a twofold way, this decision confirms what has
been elaborated earlier. First, that the rule of law with its integrity prong
applies to the acts of individuals in an extra-investigatory context; and se-
cond, that this, however, does not relieve the Chamber from a balancing
exercise between substantive and procedural fairness. The Chamber re-
quired not just any rights violation but an “egregious” violation, 660 which
seems a too strict requirement that contradicts the equal treatment of inves-
tigatory context. A similar situation occurred in the Tolimir case, where the
Chamber referred to Nikolić. 661
17.5.3. Consequences for Private Investigators at the International
Level
The aim of a private investigator is to answer the questions who, what,
when, where, how, and why. 662 Investigators – whether private or public –
use observation, inquiry, examination and experimentation to obtain evi-
dence and factual information that can be used – if necessary – in court. 663
More concretely, a criminal investigation “is the systematic process of
identifying, collecting, preserving, and evaluating information for the pur-
658
Ibid., para. 114 (emphasis added).
659
Ibid. (emphasis added).
660
Ibid. (emphasis added). See, in detail, the analysis in Pitcher, 2018, p. 273, see above note
192.
661
ICTY, Prosecutor v. Tolimir, Trial Chamber, Decision on Preliminary Motions on the In-
dictment pursuant to Rule 72 of the Rules, 14 December 2007, IT-05-88/2-PT, para. 8
(https://www.legal-tools.org/doc/014693/).
662
McMahon, 2001, p. 16, see above note 102.
663
Ibid.

pose of bringing a criminal offender to justice”. 664 McMahon mentions the

“three I’s”: information, interrogation, and instrumentation. 665 By applying
the three I’s, “the investigator gathers the facts that are necessary to estab-
lish the guilt or innocence of the accused in a criminal trial”. 666 The private
investigator is often the “last hope for many people” 667 and it is certainly
fair to say the same applies to CIJA’s investigations in Syria.
This is the reason why the information that organizations like CIJA
collect must be admissible in court as evidence 668 – and exactly that is un-
clear. 669 For CIJA’s material to be admissible, its work must satisfy interna-
tional standards of an evidentiary nature. 670 Here, these ‘standards’ might
actually work in favour of CIJA in two ways. First, the evidence law of in-
ternational criminal tribunals is governed by the principle of the free as-
sessment of all evidence. 671 This means that Trial Chambers have “maxi-
664
Ibid., p. 138.
665
Ibid., p. 144.
666
Ibid.
667
Ibid., p. 16.
668
About term “evidence” vis-à-vis “material” and “information”, see Ambos, 2016, pp. 446–
669
In a similar vein, see Rankin, 2017, p. 402, see above note 56.
670
Ibid., p. 403.
671
Ambos, 2016, p. 447, see above note 342. Cf. ICC RPE, Rule 63(2), see above note 645
(“assess freely all evidence”); for the case law, for example, see ICC, Prosecutor v. Bemba
et al., Appeals Chamber, Public Redacted Judgment on the appeals of Mr Jean-Pierre Bemba
Gombo, Mr Aimé Kilolo Musamba, Mr Jean-Jacques Mangenda Kabongo, Mr Fidèle Baba-
la Wandu and Mr Narcisse Arido against the decision of Trial Chamber VII entitled “Judg-
ment pursuant to Article 74 of the Statute”, 8 March 2018, ICC-01/05-01/13-2275-Red, pa-
ras. 93, 554 (https://www.legal-tools.org/doc/56cfc0/) (“‘[d]eferring these assessments is al-
so more consonant with’ the right and duty to assess freely, according to Rule 63(2) of the
Rules, all evidence submitted”), 585, 591; previously ICC, Prosecutor v. Lubanga, Trial
Chamber I, Decision on the admissibility of four documents, 13 June 2008, ICC-01/04-
01/06-1399, paras. 24, 32 (‘Lubanga Decision on admissibility’) (https://www.legal-
tools.org/doc/2855e0/); ICC, Prosecutor v. Ruto and Sang, Trial Chamber V(A), Public re-
dacted version of Decision on the Prosecution’s Application for Addition of Documents to
Its List of Evidence, 3 September 2014, ICC-01/09-01/11-1485-Red2, para. 28 (https://
www.legal-tools.org/doc/342ede/) (“The Prosecution notes that there is a principle that the
Chamber should have the ability to freely assess the evidence before it rather than seek to
limit the use of evidence at the outset”); ICC, Prosecutor v. Ongwen, Pre-Trial Chamber II,
Decision on Prosecution Request in Relation to its Mental Health Experts Examining the
Accused, 28 June 2017, ICC-02/04-01/15-902, para. 6 (https://www.legal-tools.org/doc/
80f3dc/).

mum flexibility” 672 and “broad discretion” when deciding on the admissi-
bility. 673 The admissibility decision of the ICC, for instance, depends on the
“relevance” 674 and “probative value” 675 of the evidence 676 and the absence
of any serious rights violation. 677 Thus, as long as CIJA investigators do
not commit a (serious) rights violation, it could be speculated that their in-
formation will at least not be ruled inadmissible prior to a judgment. 678 Es-
672
Gideon Boas et al., International Criminal Procedure, International Criminal Law Practi-
tioner Library Series, vol. III, Cambridge University Press, 2011, p. 336; Ambos, 2016,
673
Cf. Lubanga Decision on admissibility, para. 23, see above note 671; Prosecutor v. Bemba,
Trial Chamber III, Judgment pursuant to Article 74 of the Statute, 21 March 2016, ICC-
01/05-01/08-3343, para. 222 (https://www.legal-tools.org/doc/edb0cf/) (“In deciding on the
admission of the various items, […] the Chamber is afforded a measure of discretion”.); for
the same position at the ad hoc Tribunals and other ICTs, see ICTY, Prosecutor v. Aleksovski,
Appeals Chamber, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 Feb-
ruary 1999, IT-95-14/1-AR73, para. 15 (https://www.legal-tools.org/doc/168b25/); ICTY,
Prosecutor v. Kordić and Čerkez, Appeals Chamber, Decision on Appeal Regarding State-
ment of a Deceased Witness, 21 July 2000, IT-95-14/2-AR73.5, para. 20 (https://www.legal-
tools.org/doc/da3903/); ICTY, Prosecutor v. Aleksovski, Appeals Chamber, Judgment, 24
March 2000, IT-95-14/1-A, para. 63 (https://www.legal-tools.org/doc/176f05/); ICTR, Pros-
ecutor v. Musema, Appeals Chamber, Judgment, 16 November 2001, ICTR-96-13-A, pa-
ras. 37–8 (https://www.legal-tools.org/doc/fba4cc/); SCSL, Prosecutor v. Norman et al., Tri-
al Chamber I, Appeal against Decision Refusing Bail, 11 March 2005, SCSL-04-14-AR65,
para. 26 (https://www.legal-tools.org/doc/5f388e/) (purpose of Rule 89(C) “to avoid sterile
legal debate over admissibility”). For the literature see, for example, Ambos, 2016, pp. 447
ff., see above note 342 with further references.
674
ICC Statute, Articles 64(9)(a) and 69(4), see above note 182 (authorising the Trial Chamber
to “rule” on the “relevance” of evidence), ICC RPE, Rule 63(2), see above note 645; see al-
so ICTY RPE, Rule 89(C), see above note 341; ICTR RPE, Rule 89(C), see above note 341;
SCSL RPE, Rule 89(C), see above note 517 and MICT RPE, Rule 105(C), see above note
515 (referring to “relevant” evidence); Ambos, 2016, p. 448, see above note 342.
675
ICC Statute, Article 69(4), see above note 182, ICC RPE, Rule 72(2), see above note 645;
see also ICTY RPE, Rule 89(C), see above note 341; ICTR RPE, Rule 89(C), see above note
341 and MICT RPE, Rule 105(C), see above note 515. Cf. SCSL, Prosecutor v. Taylor, Ap-
peals Chamber, Decision on “Prosecution Notice of Appeal and Submissions Concerning the
Decision Regarding the Tender of Documents”, 6 February 2009, SCSL-03-01-T-721, pa-
ra. 37 (https://www.legal-tools.org/doc/453718/); also Boas et al., 2011, p. 340, see above
note 672, with further references in fn. 18.
676
In more detail Ambos, 2016, pp. 449–450, see above note 342.
677
ICC Statute, Article 69(4), see above note 182, ICC RPE, Rule 72(2), see above note 645;
see also ICTY RPE, Rule 89(D), see above note 341 and MICT RPE, Rule 105(D), see
above note 515. Cf. Katanga and Ngudjolo, 2010, paras. 13 et seq., see above note 311.
678
In a similar vein Donald K. Piragoff and Paula Clarke, “Article 69”, in Kai Ambos (ed.),
Rome Statute of the International Criminal Court – A Commentary, fourth edition, C.H.
Beck, Hart, Nomos, München et al., 2021, p. 2093, mn. 95.

pecially considering the ICC’s practice, and, more concretely, the Ongwen
Trial Chamber 679 – which rejected the Chambers’ previous practice 680 of
deciding on admissibility issues at the moment of submission (the ‘admis-
sion approach’) and promoted an alternative approach (authorised by the
Bemba Appeals Chamber) 681 to defer the admissibility decision “until the
end of the proceedings” (the ‘submission approach’). 682 The submission
approach was recently adopted by Trial Chamber X in the Al Hassan
case, 683 and by Trial Chamber V in the Yekatom and Ngaissona case. 684
However, if private investigators commit a rights violation while collecting
evidence, exclusionary rules apply – irrespective of whether the investiga-
tors worked on behalf of an ICT-organ or proprio motu.
Second, on the international level, the importance of documentary
evidence cannot be overstated. 685 Especially photography and visual media
679
ICC, Prosecutor v. Ongwen, Initial Directions on the Conduct of the Proceedings, 13 July
2016, ICC-02/04-01/15-497, paras. 24 et seq. (https://www.legal-tools.org/doc/60d63f/);
Decision on Request to Admit Evidence Preserved Under Article 56 of the Statute, 11 Au-
gust 2016, ICC-02/04-01/15-520, para. 7 (https://www.legal-tools.org/doc/c47593/). In the
same vein, see Fabricio Guariglia, “‘Admission’ v. ‘Submission’ of Evidence at the Interna-
tional Criminal Court”, in Journal of International Criminal Justice, 2018, vol. 16, no. 2,
p. 321 (who, however, cites the wrong decision in fn. 20).
680
See, for example, Katanga and Ngudjolo, 2010, para. 15, see above note 311. For a similar
approach at the ICTY, see Christine Schuon, International Criminal Procedure, A Clash of
Legal Cultures, T.M.C. Asser Press, The Hague, 2010, pp. 137–8 (shift from admissibility to
weight/reliability). See, generally, Ambos, 2016, p. 449, see above note 342.
681
ICC, Prosecutor v. Bemba, Appeals Chamber, Judgment on the Appeals of Mr. Jean-Pierre
Bemba Gombo and the Prosecutor against the Decision of TC III entitled “Decision on the
admission into evidence of materials contained in the prosecution’s list of evidence”, 3 May
2011, ICC-01/05-01/08-1386, paras. 37, 41-2, 52-7 (http://www.legal-tools.org/doc/7b62af/).
682
Ibid., para. 37; in the same vein, see Prosecutor v. Bemba et al., Decision on Prosecution
Requests for Admission of Documentary Evidence, 24 September 2015, ICC-01/05-01/13-
1285, para. 9 (https://www.legal-tools.org/doc/5a06b3/). See, generally, Guariglia, 2018,
683
ICC, Prosecutor v. Al Hassan, Annex A to the Decision on the conduct of proceedings, 6
May 2020, ICC-01/12-01/18-789-AnxA, paras. 29 et seq. (https://www.legal-tools.org/doc/
jk54h9/).
684
ICC, Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaïssona, Initial Directions on the
Conduct of the Proceedings, 26 August 2020, ICC-01/14-01/18-631, paras. 52–59
(https://www.legal-tools.org/doc/ubfjw1/).
685
Ambos, 2016, p. 487, see above note 342. Cf. Gaynor et al., 2013, pp. 1045–1046, see
above note 533. But see also Nancy Amoury Combs, Fact-Finding Without Facts, Cam-
bridge University Press, 2010, pp. 6, 12–14, finding that the ICTR, the SCSL, and the SPSC
basically relied on witness testimony with only the latter also receiving significant forensic
evidence.

is gaining increasing importance and relevance before both ICTs and na-
tional courts trying international crimes. 686 Unsurprisingly, Wiley, CIJA’s
Director, maintained: “The queen and king of evidence in any criminal in-
vestigation is a document. It isn’t cross-examined because it is factual”. 687
As to the admissibility of documentary evidence the same general princi-
ples apply, that is, it depends on its relevance and probative value (reliabil-
ity). 688 A document can only be reliable if it is authentic since “the fact that
the document is what it purports to be enhances the likely truth of the con-
tents thereof”. 689 Thus, authenticity speaks to the probative value of a doc-
ument, be it in the form of reliability or its evidentiary weight. 690 Further-
more, the ‘chain of custody’, that is, the document’s production process
from its creation to the submission to a Chamber, is to be considered. 691
The demonstration of that chain of custody is certainly one of the main
challenges for the work of CIJA-investigators. 692
686
See Section 17.3 for the impact the Group Caesar had on German proceedings. See also
Aoife Duffy, “Bearing Witness to Atrocity Crimes: Photography and International Law”, in
Human Rights Quarterly, 2018, vol. 40, no. 4, pp. 798 ff.
687
688
See also ICTY, Prosecutor v. Brđanin and Talić, Standards Order, 15 February 2002, IT-99-
36-T, para. 18 (https://www.legal-tools.org/doc/005043/); ICTR, Prosecutor v. Musema, Ap-
peals Chamber, Judgement, 16 November 2001, ICTR-96-13-A, para. 56 (https://
www.legal-tools.org/doc/6a3fce/); Katanga and Ngudjolo, 2010, paras. 13 et seq., see above
note 311; ICC, Prosecutor v. Ruto and Sang, Decision on the Prosecution's Request for Ad-
mission of Documentary Evidence, 10 June 2014, ICC-01/09-01/11-1353, paras. 13 et seq.,
37 (https://www.legal-tools.org/doc/e1a55f/). See, generally, Ambos, 2016, p. 487, see
above note 342.
689
ICC, Prosecutor v. Bemba, Public Redacted Version of Decision on the Prosecution’s Appli-
cation for Admission of Materials into Evidence Pursuant to Article 64 (9) of the Rome
Statute of 6 September 2012, 8 October 2012, ICC-01/05-01/08-2299-Red, para. 9 (https://
www.legal-tools.org/doc/13ca4b/); see also Ambos, 2016, p. 501, see above note 342.
690
ICTY, Prosecutor v. Blaškić, Trial Chamber, Decision on the Defence Motion for Reconsid-
eration of the Ruling to Exclude from Evidence Authentic and Exculpatory Documentary
Evidence, 30 January 1998, IT-95-14-T (https://www.legal-tools.org/doc/vdkn6i/) (“the
weight to be ascribed to it will depend on the additional elements which will have, if neces-
sary, been provided and which permit attesting to its authenticity”). See also Boas et al.,
2011, p. 341, see above note 672.
691
ICC, Prosecutor v. Lubanga, Judgment pursuant to Article 74 of the Statute, 5 April 2012,
ICC-01/04-01/06-2842, para. 109 (https://www.legal-tools.org/doc/677866/); Prosecutor v.
Katanga, Judgment pursuant to article 74 of the Statute, 7 March 2014, ICC-01/04-01/07-
3436-tENG, para. 91 (https://www.legal-tools.org/doc/f74b4f/).
692

17.6. Conclusion
Considering the current political landscape of anti-multilateralism and the
politically impotent UN Security Council, it was long overdue that the in-
ternational community became more creative in its fight against impunity.
The IIIMs in both Syria and Myanmar are the first step, CIJA is another. In
an instructive short article about private investigations in Austria and Ger-
many, Maier listed three reasons for the initiation of private investiga-
tions. 693 First, when public authorities are unwilling or unable to investi-
gate; second, when the investigations of public authorities are ineffective
and badly done; and third, when the victim does not want public authorities
to investigate. The first and second requirements are met in the situation of
Syria: the ICC (or any other ICT) cannot investigate, and investigations on
the ground are fruitless. Private investigations are without an alternative, so
to say, and there is nothing wrong with that. Despite the rich history and
impressive success of private investigations in domestic contexts, private
investigators still feel that “their role within society, the value of their ser-
vices and the problems they faced, have been overlooked and undervalued
for too long”. 694 In fact, the perception of private investigators does not
mirror the admiration readers identify with Sherlock Holmes and Miss
Marple. Many private investigators are still viewed as “cowboys” and
“dodgy characters”. 695 This does not do justice to their work – at the inter-
national level, it is likely that they will be the future, and the next ICC
Prosecutor is certainly aware of that. After all, human rights organisations
and entities such as CIJA on the one hand, and the investigative arms of
ICTs on the other, share one goal: the desire to end impunity. 696 This goal,
however, is a double-edged sword: it makes the use of evidence collected
by private individuals both necessary and dangerous; without it, perpetra-
tors of international crimes can hardly be convicted – when illegally ob-
tained, a conviction becomes less likely. It is thus past time for a frame-
work for private conduct in investigatory contexts at the international level.
One way to establish such a framework is regulation. Countries such as the
US, Canada, Australia, New Zealand, Belgium, the Netherlands, Germany,
Finland or Spain, have a statutory framework for regulating private investi-
693
Bernhard Maier, “Verbrechensaufklärung durch Privatdetektive”, Kriminalistik, 2001,
pp. 670–672 (670).
694
Gill and Hart, 1999, p. 246, see above note 137.
695
Ibid.
696

gators. 697 However, regulation cannot go at the detriment of the nature of

those investigations. In other words, overregulation will eventually deprive
private investigators of the advantages they have vis-à-vis public investiga-
tors. Thus, until today Britain has not regulated private investigations. 698 At
the international level, regulation is unlikely. This is where ‘integrity’ can
be employed. As an element of the rule of law, it is the umbrella that pro-
tects a trial from failing on legitimacy grounds. It applies to both private
actions and actions of public officials. Understood this way, integrity be-
comes a proxy, synonym or placeholder for procedural values such as fair-
ness, due process, natural justice or judicial legitimacy. All those values are
the DNA of the ICC Statute. The integrity of the Statute is thus a crucial
part in the fight against impunity. To close this chapter with the Declaration
of the Statute’s Review Conference in Kampala 2010:
We, high-level representatives of States Parties to the Rome
Statute of the International Criminal Court […] [r]eaffirm our
commitment to the Rome Statute of the International Criminal
Court and its full implementation, as well as to its universality
and integrity. 699
697
698
Gill and Hart, 1999, p. 248, see above note 137; Johnston, 2007, p. 288, see above note 93.
699
ICC ASP, Review Conference of the Rome Statute of the International Criminal Court, Dec-
laration RC/Decl.1, 1 June 2010 (https://www.legal-tools.org/doc/146df9-1/), emphasis add-
ed.

PART IV:
ROLE OF INTERNATIONAL COURTS
18
______
Codes of Judicial Ethics:

An Emerging Culture of
Accountability for the Judiciary?
Bettina Julia Spilker *
Public confidence in the administration of justice is one of the

essential components of a democracy. This involves not only
the respect for independence, impartiality, efficiency and qual-
ity, but also relies on the quality of the individual behaviour of
judges. Respect by judges of ethical requirements is a duty
which comes with their powers. 1
18.1. Introduction
Establishing a culture of accountability for every actor participating in ju-
dicial proceedings is a crucial element in strengthening the integrity of such
proceedings, and ultimately of a judicial institution. In the same vein, the
foundational documents of each international or internationalised court and
tribunal profess that the qualifications of the judges, key actors in judicial
proceedings, must include integrity. However, it is only of late that judges
are themselves subjected to some form of accountability, with recent years
seeing the adoption of numerous codes of judicial ethics (‘CoJEs’) before
international and internationalised courts and tribunals (‘ICTs’), some of
which include disciplinary procedures. Prior to such developments, judges
could only be subject to case-specific motions for disqualification with lim-
ited effect, and the result of which could never lead to their overall removal
from their positions. The adoption of these various CoJEs may thus be seen
*
Bettina Julia Spilker is Legal Officer, International, Impartial and Independent Mechanism
(Syria). The views expressed in this article are those of the author alone and do not neces-
sarily reflect the views of the International, Impartial and Independent Mechanism (Syria) or
of the United Nations. The author is grateful to Guénaël Mettraux, Kinga Tibori-Szabó and
Simon Meisenberg for their invaluable comments on earlier drafts.
1
Judges: Independence, Efficiency and Responsibilities, Recommendation and Explanatory
Memorandum, adopted by the Committee of Ministers of the Council of Europe on 17 No-
vember 2010, CM/Rec(2010)12, para. 69 (‘Recommendation of Committee of Ministers’)
(https://www.legal-tools.org/doc/8r16ac/).

as a significant step towards guaranteeing the integrity of the judiciary in

ICTs, and thus ultimately of proceedings in these jurisdictions in a most
exhaustive manner. The question may, therefore, be posed as to whether
such CoJEs constitute effective institutional measures to give proper effect
to the ‘integrity standard’. 2
In order to respond to this query, the first section of this chapter will
examine rules and procedures in place before the adoption of these CoJEs
and relevant decisions in this respect, as well as their effectiveness – or
lack thereof – in ensuring the integrity of proceedings (Section 18.2.). This
will be followed by a comparative analysis of CoJEs adopted by ICTs, fo-
cussing on the various principles described therein and any jurisprudence
developed thereon (Section 18.3.). The next section will provide a review
and comparison of the three disciplinary procedures adopted in respect of
these CoJEs – namely at the International Criminal Court (‘ICC’), the Ko-
sovo Specialist Chambers (‘KSC’), and the International Residual Mecha-
nism for Criminal Tribunals (‘IRMCT’) – in order to identify whether and
how these procedures foster a culture of accountability for the judiciary,
ultimately strengthening the integrity of proceedings, or whether they need
to be developed further (Section 18.4.). Then, this chapter will close with
some final remarks with respect to the questions posed at the beginning as
well as an outlook on the future of CoJEs (Section 18.5.).
18.2. Regulation of Judicial Ethics – A Beginning
Whilst some ICTs never adopted any CoJE, the majority of those which
have, did so several years after their establishment (see Table 1). The fol-
lowing ICTs will be examined: the International Criminal Tribunal for the
former Yugoslavia (‘ICTY’), the International Criminal Tribunal for Rwan-
da (‘ICTR’), the ICC, the Special Court for Sierra Leone (‘SCSL’), the Ex-
traordinary Chambers in the Courts of Cambodia (‘ECCC’), the Special
Tribunal for Lebanon (‘STL’), the IRMCT, and the KSC.
2
Series No. 93 (2018), Torkel Opsahl Academic EPublisher, Brussels, 2018, pp. 2–3 (“4. In-
stitutional ‘Integrity’ Measures Available to International Courts”) (https://www.toaep.org/

18. Codes of Judicial Ethics:
An Emerging Culture of Accountability for the Judiciary?
Appointment of Adoption of
Establishment
First Judges CoJE
ICTY 1993 1994 2016 3
ICTR 1994 1995 n/a
ICC 1998 2003 2005 4
SCSL 2002 2002 n/a
ECCC 2003 2006 2008 5
STL 2007 2009 2016 6
IRMCT 2010 2012 2015; 7
revised 2018; 8
KSC 2015 2017 2017 9
Table 1: Years of establishment, appointment of first judges and adoption of

CoJEs of various ICTs.
In any case, every foundational document of each ICT includes a

provision regarding the necessity for the integrity and impartiality of its
judges. 10 However, this provision itself is not further fleshed out in any of
these foundational legal texts.
3
ICTY, Code of professional conduct for the judges of the Tribunal, adopted on 6 July 2016
(‘ICTY CoJE’) (https://www.legal-tools.org/doc/55lsey/).
4
ICC, Code of Judicial Ethics, adopted on 9 March 2005 (‘ICC CoJE’) (https://www.legal-
5
ECCC, Code of Judicial Ethics, adopted on 31 January 2008 (‘ECCC CoJE’) (https://
www.legal-tools.org/doc/5dys4p/).
6
STL, Code of Professional Conduct for the Judges of the Special Tribunal for Lebanon,
adopted on 27 September 2016 (‘STL CoJE’) (https://www.legal-tools.org/doc/oird6k/).
7
IRMCT, Code of Professional Conduct for the Judges of the Mechanism, adopted on 11 May
2015 (https://www.legal-tools.org/doc/23cc92).
8
IRMCT, Code of Professional Conduct for the Judges of the Mechanism, adopted on 9 April
2018 (‘IRMCT CoJE’) (https://www.legal-tools.org/doc/5deknw/).
9
KSC, Code of Judicial Ethics for Judges Appointed to the Roster of International Judges of
the Kosovo Specialist Chambers, adopted on 14 March 2017 (‘KSC CoJE’) (https://
www.legal-tools.org/doc/wl7m65/).
10
Updated Statute of the International Criminal Tribunal for the former Yugoslavia, 25 May,
1993, Article 13 (‘ICTY Statute’) (https://www.legal-tools.org/doc/b4f63b); Statute of the
International Criminal Tribunal for Rwanda, 8 November 1994, Article 12 (‘ICTR Statute’)
(https://www.legal-tools.org/doc/8732d6); Rome Statute of the International Criminal Court,
17 July 1998, Article 36(3)(a) (‘ICC Statute’) (https://www.legal-tools.org/doc/7b9af9);

Prior to the adoption of CoJEs, judges were therefore not subject to

any form of accountability within their respective institutions. Indeed, not
being staff members but rather appointed officials, they did not fall within
the scope of disciplinary mechanisms of their respective institutions, since
any relevant staff rules and attached disciplinary procedures only applied to
staff members 11 – and hence not to them. In most cases, appointed by the
United Nations (‘UN’) Secretary-General, a particular regime would apply
to judges, including confidential terms of references or similar regulatory
documents, which however did not provide for any disciplinary provisions
or mechanisms.
In order to appreciate the necessity for the adoption of a sound ethi-
cal framework for the judiciary in ICTs, it is necessary to understand the
context in which these institutions operate and the particularities which
make such requirements all the more necessary. Importantly, judges in ICTs
come from various legal cultures, which necessarily include different regu-
lations of ethical duties. Added thereto, it is recalled that judges do not nec-
essarily need prior judicial experience in order to be selected. More often
than not, selection criteria for judges before ICTs are not or only very cur-
sorily regulated. Some Statutes merely require that candidates must possess
“the qualifications required in their respective countries for appointment to
the highest judicial offices”. 12 Notably, it is not required that candidates
bring with them actual experience as judges, thus making them less likely
to be familiar with ethical regulations for the judiciary. The most striking
example thereof is the so-called List B of candidates for the ICC: pursuant
to Article 36(3)(b)(ii) of the ICC Statute, it allows for candidates to apply
to become ICC judges where they have “established competence in rele-
vant areas of international law […], and extensive experience in a profes-
Statute of the Special Court for Sierra Leone, 14 August 2000, Article 13 (‘SCSL Statute’)
(https://www.legal-tools.org/doc/aa0e20); Statute of the Special Tribunal for Lebanon, 30
May 2007, Article 9(1) (‘STL Statute’) (https://www.legal-tools.org/doc/da0bbb); Statute of
the International Residual Mechanism for Criminal Tribunals, 22 December 2010, Article
9(1) (‘IRMCT Statute’) (https://www.legal-tools.org/doc/30782d).
11
For example, ICTY staff members were subject to the UN Staff Rules and Regulations,
which detailed provisions on disciplinary misconduct and any proceedings attached thereto
(see Rules 10.1-10.4). However, they are only applicable to staff members. Staff Regulations
and Rules of the United Nations, UN Doc. ST/SGB/2018/1, 1 January 2018 (https://
www.legal-tools.org/doc/zn5lba/).
12
See, for example, ICTY Statute, Article 13; ICTR Statute, Article 12; SCSL Statute, Article
13(1), see above note 10.

sional legal capacity which is of relevance to the judicial work of the

Court”. This List is an alternative to Article 36(3)(b)(i), pursuant to which
candidates shall bring with them “necessary relevant experience, whether
as judge, prosecutor, advocate or in any other similar capacity, in criminal
proceedings”. The ICC Statute thus clearly foresees that some of its judges
will not have any experience as domestic judges. As will be further ex-
posed below, for many ICTs, the entire system is ultimately controlled by
the judges themselves, rather than by independent external bodies. In many
instances, judges are the rule-makers of their own standards, as those
adopting the rules applicable to themselves. Further, the size and magni-
tude of cases before ICTs also make strict ethical standards necessary.
Where ethical problems arise, implications in terms of judicial – and ulti-
mately, financial – resources are significant. Added thereto is the fact that
proceedings before ICTs generally take place in particularly sensitive polit-
ical environments, where ethical flaws may be exploited. Overall, it is thus
clear that the particularities of ICTs make the adoption of strong ethical
requirements for the judiciary a serious necessity.
However, until recently, in the context of ICTs, the only mechanism
to question the impartiality or integrity of a judge was the possibility of
requesting his or her disqualification through motions under the applicable
Rules of Procedure and Evidence (‘RPE’). Whilst the wording of the rele-
vant rules varies slightly, in essence, a judge may not sit in any case in
which he or she has a personal interest, or concerning which he or she has
or has had any association which might affect or appear to affect the
judge’s impartiality. If this is the case, a judge shall withdraw, or a party
may apply to the president for the disqualification and withdrawal of a
judge upon these grounds. 13 Article 41(2)(a) of the ICC Statute is the only
regulatory document which provides additional details on this matter. Im-
partiality, in this respect, must be seen as a fundamental principle applica-
13
See, for example, ICTR, Rules of Procedure and Evidence, 29 June 1995, Rule 15 (‘ICTR
RPE’) (https://www.legal-tools.org/doc/0b0d43/); ICTY, Rules of Procedure and Evidence,
11 February 1994, Rule 15 (‘ICTY RPE’) (https://www.legal-tools.org/doc/30df50/); SCSL,
Rules of Procedure and Evidence, 16 January 2002, Rule 15 (‘SCSL RPE’) (https://
www.legal-tools.org/doc/b36b82/); STL, Rules of Procedure and Evidence, 20 March 2009,
Rule 25 (‘STL RPE’) (https://www.legal-tools.org/doc/3773bf/); IRMCT, Rules of Proce-
dure and Evidence, 8 June 2012, Rule 18 (‘IRMCT RPE’) (https://www.legal-tools.org/doc/
cef176/).

ble to all judges, as per the respective Statutes of ICTs 14 – a principle in-
trinsically linked to each judge’s integrity. The jurisprudence developed in
respect of disqualification requests is instructive – it primarily focusses on
issues of impartiality, rather than integrity, although it is clear that there is
some overlap between these concepts.
Early ICTY Appeals Chamber jurisprudence in Furundžija deter-
mined that “there is a general rule that a Judge should not only be subjec-
tively free from bias, but also that there should be nothing in the surround-
ing circumstances which objectively gives rise to an appearance of bias”. 15
It was thus determined that the requirement of impartiality is violated not
only where a judge is actually biased, but also where there is an appearance
of bias. 16
On that basis, the following principles were developed:
1. A judge is not impartial if it is shown that actual bias exists.
2. There is an unacceptable appearance of bias if:
a. a judge is a party to the case, or has a financial or proprietary in-
terest in the outcome of a case, or if the judge’s decision will lead
to the promotion of a cause in which he or she is involved, togeth-
er with one of the parties. Under these circumstances, a judge’s
disqualification from the case is automatic; or
b. the circumstances would lead a reasonable observer, properly in-
formed, to reasonably apprehend bias. 17
14
See, for example, ICTY Statute, Article 13; ICTR Statute, Article 12; ICC Statute, Article
36(3)(a); SCSL Statute, Article 13; STL Statute, Article 9(1); IRMCT Statute, Article 9(1),
see above note 10.
15
ICTY, Prosecutor v. Furundžija, Appeals Chamber, Judgement, 21 July 2000, IT-95-17/1-A,
para. 189 (emphasis added) (‘Furundžija Appeal Judgement’) (https://www.legal-tools.org/
doc/660d3f).
16
ICTR, The Prosecutor v. Karemera et al., Trial Chamber, Decision on Joseph Nzirorera’s
Motion for Disqualification of Judges Byron, Kam, and Joensen, 7 March 2008, ICTR-98-
44-T, para. 4 (‘Karemera et al. Decision of 7 March 2008’) (https://www.legal-tools.org/doc/
6003e9/), referring to Furundžija Appeal Judgment, paras. 181–188; ICTY, Prosecutor v.
Brđanin and Talić, Trial Chamber, Decision on Application by Momir Talić for the Disquali-
fication and Withdrawal of a Judge, 18 May 2000, IT-99-36-T, paras. 9–14 (‘Brđanin and
Talić Decision of 18 May 2000’) (https://www.legal-tools.org/doc/44e03e).
17
Furundžija Appeal Judgement, para. 189, footnote 257, see above note 15, recalling that in
Talić, it was found that the test on this prong is “whether the reaction of the hypothetical
fair-minded observer (with sufficient knowledge of the actual circumstances to make a rea-

The test of the reasonable observer, properly informed, refers to “an

informed person, with knowledge of all the relevant circumstances, includ-
ing the traditions of integrity and impartiality that form part of the back-
ground and apprised also of the fact that impartiality is one of the duties
that Judges swear to uphold”. 18 This jurisprudence is demonstrative of the
close link between a judge’s integrity and impartiality. The apprehension of
bias test further reflects the maxim that “justice should not only be done
but should manifestly and undoubtedly be seen to be done” 19 and is found-
ed on the need to ensure public confidence in the judiciary. 20 The decisive
question is whether a perception of lack of impartiality is objectively justi-
fied, 21 based on knowledge of all the relevant circumstances. 22
Early in its jurisprudence, the ICTR Appeals Chamber in Kayishema
and Ruzindana made the following finding:
sonable judgement) would be that [the judge] … might not bring an impartial and unpreju-
diced mind”; Brđanin and Talić Decision of 18 May 2000, para. 15, see above note 16.
18
Ibid., para. 190, referring to Supreme Court of Canada, R.D.S. v. The Queen, 27 September
1997; see also ICTR, The Prosecutor v. Nahimana et al., Appeals Chamber, Judgement, 28
November 2007, ICTR-99-52-A, para. 50 (‘Nahimana et al. Appeal Judgment’) (https://
www.legal-tools.org/doc/04e4f9/); ICTY, Prosecutor v. Galić, Appeals Chamber, Judgement,
30 November 2006, IT-98-29-A, para. 40 (https://www.legal-tools.org/doc/c81a32/); ICTR,
The Prosecutor v. Rutaganda, Appeals Chamber, Judgement, 26 May 2003, ICTR-96-3-A,
para. 40 (https://www.legal-tools.org/doc/40bf4a/); Prosecutor v. Delalić et al., Appeals
Chamber, Judgement, 20 February 2001, IT-96-21-A, para. 682 (‘Delalić et al. Appeal
Judgment’) (https://www.legal-tools.org/doc/051554/).
19
Karemera et al. Decision of 7 March 2008, para. 5, see above note 16, referring to Furundži-
ja Appeal Judgment, para. 195; Brđanin and Talić Decision of 18 May 2000, para. 9, see
above note 16; SCSL, Prosecutor v. Sesay, Decision on Defence Motion Seeking the Dis-
qualification of Justice Robertson from the Appeals Chamber, 13 March 2004, SCSL-04-15-
A, para. 16 (https://www.legal-tools.org/doc/d83edd/); ICTR, The Prosecutor v. Ntahobali,
The Bureau, Decision on Motion for Disqualification of Judges, 7 March 2006, ICTR-97-
21-T, para. 9 (‘Ntahobali Decision of 7 March 2006’) (https://www.legal-tools.org/doc/
69f139/).
20
ICTY, Prosecutor v. Stanišić and Župljanin, Appeals Chamber, Judgement, 30 June 2016,
IT-08-91-A, para. 43 (https://www.legal-tools.org/doc/e414f6/), referring to Delalić et al.
Appeal Judgment, para. 707, see above note 18; ICTR, The Prosecutor v. Karemera et al.,
Decision on Joseph Nzirorera’s Motion for Disqualification of Judge Byron and Stay of Pro-
ceedings, 20 February 2009, ICTR-98-44-T, para. 6 (https://www.legal-tools.org/doc/
f27eb3/).
21
Karemera et al. Decision of 7 March 2008, para. 5, see above note 16, referring to Ntahobali
Decision of 7 March 2006, para. 9, see above note 19; Furundžija Appeal Judgement, pa-
ra. 185, see above note 15.
22
Karemera et al. Decision of 7 March 2008, para. 5, ibid.

As a rule, a fair trial requires that a set of procedural rules be

established to ensure equality between the parties to the case
and guarantee the independence of the Tribunal and the impar-
tiality of the judges. A judge is presumed to be impartial until
proven otherwise. This is a subjective test: impartiality relates
to the judge’s personal qualities, his intellectual and moral in-
tegrity. A judge is bound only by his conscience and the law.
That does not mean that he rules on cases subjectively, but ra-
ther according to what he deems to be the correct interpreta-
tion of the law, ensuring for an unbiased and knowledgeable
observer that his objectivity does not give the impression that
he his [sic] impartial, even though, in fact, he is. Moreover,
before taking up his duties, each judge makes a solemn decla-
ration obliging him to perform his duties and exercise his
powers as a judge “honourably, faithfully, impartially and
conscientiously.” 23
Importantly for the purpose of this chapter, judges of ICTs enjoy a
“presumption of impartiality, based on their oath of office and the qualifi-
cations for their selection”, 24 which cannot be easily rebutted. 25 In the ab-
sence of evidence to the contrary, it must be assumed that the judges “can
disabuse their minds of any irrelevant personal beliefs or predisposi-
tions”. 26 A ‘high threshold’ has thus been placed on the moving party to
displace this presumption – justified as follows: while any real or apparent
bias on the part of a judge undermines confidence in the administration of
justice, “it would be equally a threat to the interests of the impartial and fair
23
ICTR, The Prosecutor v. Kayishema and Ruzindana, Appeals Chamber, Judgment (Reasons),
1 June 2001, ICTR-95-1-A, para. 55 (https://www.legal-tools.org/doc/9ea5f4/), referring to
Furundžija Appeal Judgement, paras. 196–197, see above note 15; ICTR, The Prosecutor v.
Akayesu, Appeals Chamber, Judgment, 1 June 2001, ICTR-96-4-A, paras. 90 et seq.
(‘Akayesu Appeal’) (https://www.legal-tools.org/doc/c62d06/); Delalić et al. Appeal Judg-
ment, paras. 682 et seq. and 698 et seq., see above note 18.
24
Karemera et al. Decision of 7 March 2008, para. 6, see above note 16.
25
ICTR, The Prosecutor v. Nyiramasuhuko et al., Appeals Chamber, Judgement, vol. II, 14
December 2015, ICTR-98-42-A, para. 2843 (https://www.legal-tools.org/doc/93cee1/), re-
ferring to ICTR, The Prosecutor v. Karemera et al., Appeals Chamber, Judgement, 29 Sep-
tember 2014, ICTR-98-44-A, para. 24 (https://www.legal-tools.org/doc/372a64/); ICTR, The
Prosecutor v. Hategekimana, Appeals Chamber, Judgement, 8 May 2012, ICTR-00-55B-A,
para. 16 (https://www.legal-tools.org/doc/885b2c/); Nahimana et al. Appeal Judgment, pa-
ra. 48, see above note 18; Akayesu Appeal, para. 91, see above note 23; Furundžija Appeal
Judgement, para. 197, see above note 15.
26
Nahimana et al. Appeal Judgment, para. 48, see above note 18, referring to Furundžija Ap-
peal Judgement, para. 197, see above note 15.

administration of justice if judges were to be disqualified on the basis of

unfounded and unsupported allegations of bias”. 27
Throughout the existence of ICTs, rare were the occasions where bias,
or an appearance of bias, was established. At the ICTR, in the Karemera et
al. case, the Appeals Chamber determined that
the admitted association and cohabitation [of Judge V with
Prosecution counsel on the same case], the fact that [Judge V]
did not disclose these facts until Defence counsel expressly
raised the matter in court and that she withdrew from the case
after Defence lodged applications for her disqualification on
this basis and before the Bureau decided the disqualification
motions […] could well lead a reasonable, informed observer
to objectively apprehend bias. 28
However, even in such the circumstances – which could be deemed
evident from the point of view of an objective observer – the ICTR Appeals
Chamber emphasised that this was “not a finding of actual bias on the part
of [Judge V], but rather a finding, made in the interests of justice, that the
circumstances of the case gave rise to an appearance of bias”. 29 It is note-
worthy in this respect that the Appeals Chamber found that this appearance
also extended to the remaining two judges because, although aware of the
circumstances of Judge V’s association with the Prosecution counsel, they
acquiesced in rejecting a Defence motion for Judge V’s recusal and, there-
fore, in continuing the trial with the Judge on the bench. 30
In a now infamous case before the ICTY, the Judge in question – in a
letter, later widely published in the media – referred to “what he perceived
as a ‘set practice’ of convicting military commanders and ma[de] clear his
dissatisfaction with his perceived change in the Tribunal’s direction in this
27
Karemera et al. Decision of 7 March 2008, para. 6, see above note 16, referring to Ntahobali
Decision of 7 March 2006, para. 9, see above note 19; Delalić et al. Appeal Judgment, pa-
ra. 707, see above note 18.
28
ICTR, The Prosecutor v. Karemera et al., Reasons for Decision on Interlocutory Appeals
Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Mo-
tion for Leave to Consider New Material, 22 October 2004, ICTR-98-44-AR15bis.2, pa-
ra. 67 (‘Karemera et al. Decision of 22 October 2004’) (https://www.legal-tools.org/doc/
7e9d02/).
29
Ibid., para. 67.
30
Ibid., para. 69.

regard”. 31 In adjudicating upon a motion on the Judge’s disqualification,

the Majority considered that:
By referring to a ‘set practice’ of convicting accused persons
without reference to an evaluation of the evidence in each in-
dividual case, […] there are grounds for concluding that a rea-
sonable observer, properly informed, would reasonably appre-
hend bias on the part of [Judge H] in favour of a conviction.
[…] [T]his appearance of bias is further compounded by
[Judge H’s] statement that he is confronted by a professional
and moral dilemma, which in the view of the Majority, is a
clear reference to his difficulty in applying the current juris-
prudence of the Tribunal. In the circumstances, the Majority
considers that the Letter, when read as a whole, rebuts the pre-
sumption of impartiality. 32
Of importance for the present purposes, a dissent was filed alongside
the above decision, in which the dissenting Judge very clearly stated that he
consider[ed] a letter of this kind to be undoubtedly improper
in various respects for a Judge in [Judge H’s] position. In the
Letter, [Judge H] sets forth an inarticulate critique of the re-
cent jurisprudence of the Tribunal based on unsubstantiated
speculations and insinuations of improper conduct by other
colleagues in a fashion that is unbefitting of a Judge. 33
Overall, however, the dissenting Judge disagreed with the Majority and, in
doing so, he noted that
in applying the test of a ‘reasonable observer’, the Majority
fail[ed] to adequately take into account and address all of the
surrounding circumstances that an informed observer is as-
sumed to know in order to assess whether there is a reasonable
apprehension of bias. […] Such circumstances include, for ex-
ample, the high eligibility standard for Judges of the Tribunal
as embodied in Article 13 of the Statute, the oath taken by
judges to exercise their powers ‘honourably, faithfully, impar-
31
ICTY, Prosecutor v. Šešelj, Decision on Defence Motion for Disqualification of Judge Fred-
erik Harhoff and Report to the Vice-President, 28 August 2013, IT-03-67-T, para. 12 (‘Šešelj
Decision of 28 August 2013’) (https://www.legal-tools.org/doc/5b4aa1/).
32
Ibid., para. 13.
33
Ibid., Dissenting Opinion of Judge Liu, para. 2.

tially and conscientiously’, and a judge’s professional experi-

ence. 34
In the dissenting Judge’s view,
had the Majority considered [Judge’s H’s experience as a
Judge of the Tribunal and a professor of law], it would have
found that [his] statements do not demonstrate an appearance
of bias towards conviction of accused before the Tribunal as
to overcome the presumption of impartiality. 35
This approach deserves particular scrutiny – mostly because the ar-
gument can readily be turned on its head. Indeed, should it not be the case
that precisely because of Judge H’s position as an ICTY judge and a pro-
fessor of law and because of the oath he took, a reasonable observer should
be even stricter in his determination of whether an appearance of bias to-
wards a conviction of an accused person has been established? Should it
not be the case that someone in this position should be even less likely to
make such statements – rather than justifying such statements by the fact
that, even though ‘unbefitting’ of a judge, they do not demonstrate bias?
The above demonstrates that the jurisprudence regarding the disqual-
ification of judges in cases of lack of impartiality is less than satisfactory in
holding judges accountable in instances which could be qualified as having
the potential of seriously affecting the integrity of proceedings. In addition,
it must be stressed that the purpose of motions for disqualification is to en-
sure the integrity of proceedings. CoJEs, on the other hand, serve a differ-
ent aim, namely ensuring the professional integrity of the judiciary and
providing for accountability mechanisms in this respect.
In the light of this, the adoption of appropriate CoJEs, with discipli-
nary proceedings attached thereto, may be seen as a necessity in order to
guarantee such accountability and to ensure that judges abide by the stand-
ards they swear an oath to.
18.3. Codes of Judicial Ethics – Applicable Standards
The following section will look into the respective preamble and legal basis
of each CoJE to ascertain the considerations underlying their adoption, and
whether the judges, in adopting these CoJEs, were provided with, or pro-
vided themselves with, a sound legal basis for this purpose. This will be
34
Ibid., para. 8.
35
Ibid., para. 9.

followed by a comparative analysis of the various principles set out in each

CoJE. Finally, this section will close with a comparison of the disciplinary
proceedings attached to the CoJEs of the ICC, the KSC and the IRMCT –
as the only CoJEs including such proceedings.
18.3.1. Preamble and Legal Basis
From a comparative perspective, it is interesting to look at the preamble
and the legal basis for each CoJE. Indeed, the foundational documents of
most ICTs provide judges with powers to regulate their own proceedings.
With the exception of the ICC, the most poignant example thereof is their
competence, as per their respective foundational documents, to adopt their
own RPE. 36 Judges of ICTs have taken a broad approach to this compe-
tence in adopting RPE which provide for additional competences to further
regulate detailed aspects of the conduct of proceedings – often through the
president of a respective institution, in consultation with the judges and
other internal stakeholders. 37 This demonstrates the emergence of a culture,
in ICTs, in which the judges of each institution have adopted a practice of
providing themselves or their respective president with broad powers to
regulate a range of matters regarding the internal functioning of their re-
spective institutions. This, in turns, means that it was only upon the initia-
tive of the judges themselves that a CoJE could be adopted – and this prac-
tice could thus only emerge through a change of approach, an awareness by
the judges themselves that there was a necessity for accountability.
18.3.1.1. ICC (2005)
The ICC CoJE was adopted by the ICC judges in 2005, as a first of its kind
at ICTs. It stands out as demonstrative of an emerging practice, in the con-
text of a new generation of international institutions – the ICTY and the
ICTR having by then been established for over 10 years already, without
the adoption of any regulatory documents for their judges. 38
36
See, for example, ICTY Statute, Article 15, see above note 10; STL Statute, Article 28, see
above note 10; IRMCT Statute, Article 13, see above note 10.
37
See, for example, ICTY RPE, Rule 19(B), see above note 13; STL RPE, Rule 32(E), see
above note 13; IRMCT RPE, Rule 23(B), see above note 13.
38
In a similar fashion, an ICC Code of Conduct for the Office of the Prosecutor was drafted as
an institutional priority at an early stage, as an important means of cultivating coherence be-
tween the being of prosecutors and doing of investigations. See Salim A. Nakhjavani, “The
Origins and Development of the Code of Conduct”, in Morten Bergsmo, Klaus Rackwitz

The preamble of the ICC CoJE is brief and notably refers to the sol-
emn undertaking, as provided for in Article 45 of the ICC Statute and
fleshed out in Rule 5(1)(a) of the ICC RPE. 39 The judges further recall
principles of judicial independence, impartiality and proper conduct, as
well as the “need for guidelines of general application to contribute to judi-
cial independence and impartiality and with a view to ensuring the legiti-
macy and effectiveness of the international judicial process”. Regard is no-
tably had to the UN Basic Principles on the Independence of the Judici-
ary (1985). 40
According to Article 1 of the ICC CoJE, the Code is adopted by the
judges pursuant to Regulation 126 of the Regulations of the Court. Indeed,
the latter provision incorporates an explicit legal basis for the adoption of
the CoJE, which is to be drawn up by the ICC President upon consultation
with the judges – and to be adopted by the majority of the judges. The
Regulations of the Court being adopted by the judges themselves, 41 it does
appear somewhat circular to note that a legal basis for the adoption of the
CoJE was adopted by the same actors who eventually adopted the CoJE
itself. However, as will be seen below, this was not the case with other Co-
JEs, and may also be seen as demonstrative of the ICC judges’ awareness
of the necessity for such a Code, and consequently, for a clear legal basis
for that purpose – it may, of course, be asked whether this was so because
the judges were conscious of the general importance of such a Code for the
purpose of ensuring the integrity of the judicial process, or whether the Co-
JE was adopted in order to provide a more detailed framework to flank the
disciplinary procedure the judges are subjected to by virtue of Articles 46-
47 of the ICC Statute and Rules 23-32 of the ICC RPE, both imposed upon
them by the States Parties. Article 11(1) of the ICC CoJE would point to
the latter interpretation, as it is stipulated that its principles shall “serve as
guidelines on the essential ethical standards required of judges in the per-
and SONG Tianying (eds.), Historical Origins of International Criminal Law: Volume 5,
2017, p. 954 (https://www.toaep.org/ps-pdf/24-bergsmo-rackwitz-song).
39
The solemn undertaking of Prosecutors also served as source for one of the central concepts
of the draft ICC Code of Conduct for the Office of the Prosecutor. See ibid., p. 959.
40
Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Na-
tions Congress on the Prevention of Crime and the Treatment of Offenders held at Milan
from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32
of 29 November 1985 and 40/146 of 13 December 1985 (https://www.legal-tools.org/doc/
rnabsy/).
41

formance of their duties. They are advisory in nature and have the object of
assisting judges with respect to ethical and professional issues with which
they are confronted”. 42 Academic commentators point to the same interpre-
tation, as it has been noted that the ICC CoJE
was adopted in response to the need for general guidelines to
contribute to judicial independence and impartiality and with
the aim of ensuring the legitimacy and effectiveness of the in-
ternational judicial process. […] The [ICC CoJE] provides the
guidelines on the essential ethical standards required of judges
according to the principles of independence, impartiality, in-
tegrity, confidentiality and diligence. As such, it will assist in
assessing any complaint of misconduct alleged against a judge
of the [ICC]. 43
18.3.1.2. ECCC (2008)

The preamble of the ECCC CoJE is demonstrative of its nature as a hybrid
or internationalised tribunal. Indeed, reference is made to the Cambodian
Code of Ethics of 2007, as well as to its foundational documents. Regard is
also had, as in other CoJEs, to the UN Basic Principles on the Independ-
ence of the Judiciary (1985). Importantly, the preamble is instructive in that
it appears to contain the only reference to a ratio for its adoption – the
judges considered “the hybrid character of the [ECCC] and the need to
adopt a code of ethics applying to both Cambodian and international judges,
and incorporating both national and international norms”.
An actual legal basis for its adoption is found neither in the preamble
nor in the CoJE itself. Adopted by the judges in Plenary, it would appear
that a potential legal basis for its adoption could be seen in Rule 18(6)(d) of
the ECCC Internal Rules and Regulations, but this is nowhere specified.
18.3.1.3. ICTY (2016)
The preamble of the ICTY CoJE refers to Article 13 of the ICTY Statute,
which provides for the relevant qualifications of judges – notably high
moral character, impartiality and integrity. In addition, explicit reference is
made to the solemn declaration required of each judge, in accordance with
42
Emphasis added.
43
“Article 46”, in Otto Triffterer and Kai Ambos (eds.), Commentary on the Rome Statute of
the International Criminal Court, third edition, C.H. Beck, Hart, Nomos, 2016, para. 5.

Rule 14 of the ICTY RPE. Further, the judges recall the UN Basic Princi-
ples on the Independence of the Judiciary (1985).
According to its Article 1, the ICTY CoJE is adopted by the judges
pursuant to Rule 24 of the ICTY RPE. The latter provision is entitled “Ple-
nary Meetings of the Tribunal” and incorporates in its sub-rules a range of
competences of judges. Article 1 of the ICTY CoJE, however, does not
specify which sub-rule is being applied in this respect – thought may have
been had to Rule 24(iv) or (vi) 44 of the ICTY RPE. However, neither of
these sub-rules are a perfect fit: a “decision upon matters relating to the
internal function of the Chambers and the Tribunals” would have to be in-
terpreted very broadly to cover the adoption of a legislative document. The
same consideration applies to the “exercise of other functions provided for
in the Statute or in the Rules” – given that, aside from the RPE, the adop-
tion of legislative instruments by the judges (as opposed to the President) is
not provided for in the ICTY Statute or its RPE.
This is symptomatic of a regulatory void, which could be explained
by the fact that a CoJE was simply not envisaged for an ICT established in
1993. Having nevertheless adopted this CoJE, the judges demonstrated cre-
ativity as far as a legal basis is concerned. It is questionable whether this
would have withstood a serious challenge – however, this remains a strictly
hypothetical question, given that the CoJE did not contain any disciplinary
mechanism, thus providing no forum for such a challenge; and, most im-
portantly, given that such a challenge never took place, whilst the ICTY
shut its doors in 2017.
18.3.1.4. STL (2016)
The preamble of the STL CoJE – in a similar fashion as the ICTY CoJE –
refers back to Article 9(1) of the STL Statute, which provides for the quali-
fications of judges, as well as for the solemn declaration to be undertaken
by each judge under Rule 24 of the STL RPE. In a unique fashion, the STL
judges take note of the “process for excusal or disqualification of judges
provided in Rule 25 of the [STL] Rules”. Whilst the relationship between
the latter proceedings and the CoJE is not further fleshed out, its mention-
ing does point to an obvious connection between processes of excusal and
44
ICTY RPE, Rule 24(iv) and (vi), see above note 13: “Judges shall meet in plenary to […] (iv)
decide upon matters relating to the internal functioning of the Chambers and the Tribunal;
[…] (vi) exercise any other functions provided for in the Statute or in the Rules”.

disqualification (related to questions of impartiality) and the CoJE (which

regulates the principle of impartiality).
Most interestingly, in a manner identical to the ICTY CoJE, Article 1
of the STL CoJE stipulates that it has been adopted by the judges pursuant
to Rule 40 of the STL RPE, a provision entitled “Plenary Meetings of the
Tribunal”. The wording of the relevant provision is identical to that of the
ICTY RPE mentioned above. The same conclusions thus apply: no clear
legal basis is being pointed to, and neither of the potentially relevant sub-
rules of Rule 40 of the STL RPE 45 is a perfect fit. In addition, as with the
ICTY, the adoption of legislative instruments by the judges themselves, as
opposed to the President, is not foreseen in STL Statute or RPE – safe for
the adoption of the RPE itself. Here as well, the judges have demonstrated
creativity in the interpretation of their competences – however, they are
equally unlikely to face a legal challenge in this respect, since the STL Co-
JE does not provide for any disciplinary proceedings attached to alleged
violations of the CoJE.
18.3.1.5. KSC (2017)
The preamble of the KSC CoJE stands out as a more fleshed-out version of
the preambles of other CoJEs. The KSC judges recall Articles 26, 27 and
31 of the Law on Specialist Chambers and Specialist Prosecutor’s Office
(‘KSC Law’), 46 which provide respectively for their solemn declaration,
for their own qualifications (high moral character, impartiality and integri-
ty), as well as for the principles of judicial independence, impartiality and
proper conduct. The KSC judges further recall – a matter of relevance to
the legal basis for the adoption of the KSC CoJE – that Article 31(4) of the
KSC Law provides that a judge may be dismissed if the judges, by absolute
majority, find that he or she has ceased to fulfil the requirements of Arti-
cles 27 and 31 of the KSC Law. The additional references to domestic and
international standards reflect the KSC’s position as separate judicial
chambers within the Kosovo judiciary. 47 Regard is, therefore, had to the
45
STL RPE, Rule 40(ii) and (iv), see above note 13: “Judges shall meet in plenary to […] (iv)
decide upon matters relating to the internal functioning of the Chambers and the Tribunal;
[…] (vi) exercise any other functions provided for in the Statute or in the Rules”.
46
The Republic of Kosovo, Law on Specialist Chambers and Specialist Prosecutor’s Office,
adopted on 3 August 2015 (‘KSC Law’) (https://www.legal-tools.org/doc/8b71c3/).
47
See Exchange of Letters between the Kosovo President and the EU High Representative,
pp. 8–9.

regulations of the principles of the judicial system as found in the Kosovo

Constitution, as well as to international standards found in the UN Basic
Principles on the Independence of the Judiciary (1985), the Bangalore
Principles of Judicial Conduct (2002), 48 and Recommendations adopted by
the Committee of Ministers of the Council of Europe entitled “Judges: In-
dependence, Efficiency and Responsibilities” (2010). 49
According to its Article 1, the KSC CoJE is adopted by the judges
pursuant to Article 19(6) and in accordance with the above-mentioned Arti-
cle 31(4) of the KSC Law. The former provision provides for a legal basis
for the Specialist Chambers to “adopt internal rules, policies and practice
directions that are necessary for its proper functioning, the security or fair-
ness of proceedings or to give effect to the provisions of [the KSC] Law”.
Whilst it is arguable that the legal basis is also to a certain extent construct-
ed, since there is no explicit basis for the adoption of an actual CoJE in the
KSC Law, it remains the case that, in light of Article 31(4), a CoJE is nec-
essary in order to regulate the proper functioning of the Specialist Cham-
bers, as well as to give effect to this provision of the KSC Law, hence
keeping in line with the requirements of Article 19(6) of the KSC Law. To
that extent, it may be stated that the KSC CoJE provides for the most solid
legal basis when compared to other CoJEs, as it draws upon provisions of
its foundational documents – as opposed to documents adopted by the
judges themselves. This may well be the case because of the recent adop-
tion of its foundational document in 2015, whereby awareness of matters of
judicial ethics was already engrained into the legal culture of ICTs.
18.3.1.6. IRMCT (2015, revised 2018)
The preamble of the IRMCT CoJE strikes as very similar to that of the IC-
TY and STL CoJEs – in particular on references to the qualification of
judges and to their solemn declaration. One consideration markedly stands
out, added as a result of a revision to the IRMCT adopted in April 2018: on
that occasion, the IRMCT judges adopted a disciplinary procedure and, in
doing so, also amended the preamble of the IRMCT CoJE, which now em-
phasises that the “adoption of an appropriate mechanism by which viola-
tions of this Code may be addressed reflects respect for the principle of ac-
countability and for the principles set forth in this Code and shall further
48
The Bangalore Principles of Judicial Conduct, 26 November 2002 (‘Bangalore Principles’)
(https://www.legal-tools.org/doc/xwake8/).
49
Recommendation of Committee of Ministers, see above note 1.

enhance the public confidence in the [IRMCT]”. The adoption of this

amendment, as will be fleshed out further below 50 is not only a significant
step forward in terms of ensuring the accountability of judges – the ratio
for it, as demonstrated in this preamble, is a fundamental shift in perspec-
tive on the part of the judges and an awareness that ensuring their own ac-
countability is essential to increase the public confidence in the entire judi-
cial institution.
As far as the adoption is concerned, the same considerations apply as
those for the ICTY and STL CoJEs. Article 1(1) of the IRMCT CoJE
broadly refers to Rule 26 of the IRMCT RPE (‘Plenaries’) as a legal basis
for its adoption. Again, it is not further explained which sub-rule of this
provision is referred to in terms of a legal basis, whilst neither of the poten-
tially relevant ones appears to be directly applicable to the adoption of the
IRMCT CoJE. 51
18.3.1.7. Conclusion
In light of the above considerations, it is most notable that – even though
the Statutes of most ICTs allow for the judges to adopt their own RPE, and
would thus have given them the possibility of providing themselves with a
legal basis for the adoption of CoJEs, none of them did so. Instead, in most
cases, the legal basis provided remains unclear at best. In effect, progress
has been made, of course, in light of the fact that CoJEs have been adopted
in recent years. What this does demonstrate, however, is that the actual
evolution in the awareness of the importance of CoJEs is not as deeply
rooted as it may seem – it is one thing to note that there was no explicit le-
gal basis provided in the ICTY Statute, the adoption of which dates back to
1993. However, the fact that neither the STL nor the IRMCT Statutes,
adopted in 2009 respectively 2012, contain an explicit legal basis for a Co-
JE demonstrates that there has been no such awareness with the States
adopting such Statutes. As stated above, it is the judges who triggered the
progress brought about by the adoption of CoJEs – and even the judges did
not go as far as amending the respective RPE of their institutions to create
a clear legal basis, seemingly preferring to remain vague in this respect. As
50
See Sections 18.4.1.3. and 18.4.2. below.
51
IRMCT RPE, Rule 26(A)(iii) and (v), see above note 13: “Judges may decide in Plenary to:
[…] (iii) decide upon matters relating to the internal functioning of the Chambers and the
Tribunal; […] (v) exercise any other functions provided for in the Statute or in the Rules”.

always when it comes to the adoption and content of RPE of ICTs, given
the lack of travaux préparatoires, the ratio for this remains unclear.
The most encouraging example of a legal basis may be found in the
ICC Regulations of the Court, providing for an explicit legal basis – even
though arguably out of necessity in light of the disciplinary system im-
posed by States Parties. It is further encouraging that the States Parties
chose to impose a system of disciplinary proceedings – a measure not taken
in respect of neither the ECCC, the ICTY, the IRMCT or the STL.
The KSC regulations are further encouraging, as they demonstrate
that the foundational documents of such institutions may also incorporate
the indication of a necessity to put into place disciplinary mechanisms, as
demonstrated in Article 31(4) of the KSC Law.
18.3.2. Applicable Standards
The CoJEs analysed in this chapter set out a number of principles, the re-
spective wording of which has evolved over the years. In this section, each
of these principles and their evolution will be briefly presented – starting
from the first adopted CoJE, the ICC CoJE, and analysing how the wording
of each provision developed.
18.3.2.1. Judicial Independence
A cornerstone of judicial ethics, judicial independence is incorporated as
the first article of every CoJE. The initial wording of the ICC CoJE, incor-
porated verbatim by the ECCC CoJE, read as follows:
1. Judges shall uphold the independence of their office and
the authority of the [Court/ECCC] and shall conduct them-
selves accordingly in carrying out their judicial functions.
2. Judges shall not engage in any activity which is likely to
interfere with their judicial functions or to affect confi-
dence in their independence. 52
Subsequent CoJEs of the ICTY, the STL and the IRMCT replaced
Paragraph 1 of this Article with the following wording:
1. In the exercise of their judicial functions, Judges shall be
independent of all external authority or influence. 53
52
ICC CoJE, Article 3, see above note 4; ECCC CoJE, Article 1, see above note 5.
53
ICTY CoJE, Article 2, see above note 3; STL CoJE, Article 2, see above note 6; IRMCT
CoJE, Article 2, see above note 8.

The KSC CoJE provides the most comprehensive version of this Ar-
ticle, having kept all three paragraphs mentioned above. Importantly, the
KSC CoJE replaced the reference to the independence of “all external au-
thority and influence” by independence of “any authority and influence”. 54
This reflects a broad understanding of the concept of judicial independence,
incorporating both internal and external independence, as reflected in other
similar instruments. 55
In addition, in respect of the last paragraph, the KSC CoJE adds that
judges shall not engage in any activity which is likely to affect “respect for
their judicial office”.
In respect of the ICC, it is noteworthy that the principle of judicial
independence is also incorporated at Article 40 of ICC Statute itself. Whilst
Article 40(1) and (2) largely reflect the above provisions of the CoJE, Arti-
cle 40(3) provides that “Judges required to serve on a full-time basis at the
seat of the Court shall not engage in any other occupation of a professional
nature”. Article 40(4) goes further in providing for a procedure in case of
disagreement on the interpretation of Article 40(2) and (3): Any question
regarding their application shall be decided by a majority of judges, where-
by the judge concerned shall not take part in such a decision.
A question recently arose in respect of the interpretation of Arti-
cle 40(2) of the ICC Statute. The Judge in question had initially asked to
resign as a full-time judge, whilst indicating her readiness to continue sit-
ting on a non-full-time judge on a case to which she had been assigned
since the beginning of the trial and which was in the deliberation stage at
the relevant time. Her request was granted accordingly. 56 Shortly thereafter,
the Judge put forward a second request, notifying the ICC Presidency that
she had been appointed as ambassador for her country to a third country
and seeking the approval of her continued participation in the relevant ICC
case, whilst having taken up her position as ambassador. Regarding Arti-
cle 40(2) of the ICC Statute, the Judge submitted that her new responsibil-
ity would “not in any way interfere with [her] judicial function […] [n]or
would it affect confidence in her independence”. In particular, she noted
that her new responsibilities would be confined to the bilateral relationship
54
KSC CoJE, Article 3(1), see above note 9.
55
See, for example, Recommendation of Committee of Ministers, Recommendations 11-21
and 22-25, see above note 1.
56
ICC, Internal Memorandum, 19 March 2019, 2019/PRES/00003-21, paras. 3–4 (https://
www.legal-tools.org/doc/5a27d1/).

between her country and the third country and that she would refrain from
exercising her responsibilities in this respect if and when it may have any
implications for the relevant ICC case. Finally, the Judge stated that –
should her request not be granted – she would submit her resignation as an
ICC judge. 57
In accordance with the procedure provided in Article 40(4) of the
ICC Statute, the ICC Judges deliberated and, by absolute majority, came to
the conclusion that the Judge’s request was “not incompatible with the re-
quirements of judicial independence established in [Article 40]”. 58 In doing
so, the Judges applied Article 40 in a concrete – rather than abstract – man-
ner, noting that the language of the provision suggested that it is concerned
with “the concrete question of whether functions actually being performed
by a specific judge could affect judicial independence”. 59 The majority fur-
ther noted the language of Article 40(2), namely reference to any activity
“likely to” affect confidence in a judge’s independence, and concluded that
“likelihood denotes a level of certainty beyond more speculation or possi-
bility”. 60 Having established the latter, the majority focussed on the second
limb of Article 40(2) and, in this respect, took into account that the Judge’s
professional activities as ambassador would be entirely confined to the bi-
lateral relationship between the Judge’s country and the third country, nei-
ther of which are connected to any case before the ICC. It further noted the
Judge’s commitment to refraining from exercising her responsibilities
where this may impact on the relevant ICC case. The majority thus con-
cluded that it was “not likely that performing her functions as Ambassador
to [the third country] would affect confidence in [the Judge’s] independ-
ence as Judge of the Court”. 61
The minority took a different position. Equally concerned with the
second limb of Article 40(2) of the ICC Statute, it noted that the question of
the “likelihood of affecting confidence in judicial independence” is “inevi-
tably concerned with the appearance of judicial independence, in the eyes
of reasonable outsider observers”. 62 It is noteworthy that this standard is
57
Ibid., para. 5.
58
Ibid., para. 8.
59
Ibid., para. 10.
60
Ibid., para. 11.
61
Ibid., para. 13.
62
Ibid., para. 15.

somewhat reminiscent of the test applied in respect of the appearance of

impartiality in cases of disqualification of judges. 63 Applying the standard
to the case at hand, the minority opined that it was “evident that the per-
formance of an executive or political function for a State Party by an indi-
vidual who remained a Judge of the Court was entirely likely to affect pub-
lic confidence in judicial independence”. 64 In particular, the minority con-
trasted the situation with a case before the ICTY, whereby a judge sought
and received approval of all judges prior to seeking nomination for a politi-
cal function in her country of origin, and undertook not to assume any po-
litical functions or duties prior to the completion of her tenure – the minori-
ty stressed that no such guarantees had been expressed in the present
case. 65
Much criticism has been voiced regarding the approach of the Judge
in question – from alleging that she failed to disclose to the Presidency her
new position as ambassador when she resigned as a full-time judge, know-
ing that she was thus circumventing Article 40(3) of the ICC Statute, to the
pressure she allegedly put her fellow judges under in respect of the present
decision, in offering the alternative to resign should her request not be
granted, thus effectively threatening the entire trial she was assigned to. 66
One point raised in this respect is of particular importance to the present
chapter: in their decision on this matter, the ICC Judges did not once men-
tion the ICC CoJE, which – whilst not legally binding per se, nevertheless
pursuant to Article 11(1) serves as “guidelines on the essential ethical
standards required of judges in the performance of their duties” – and
which regulates expressly, at Article 10(2) that judges “shall not exercise
any political function”. It is indeed questionable why this reference was not
made, particularly as it would have significantly supported the minority
position. Whether this was by oversight, or whether the Judges consciously
chose to ignore their own CoJE for that purpose, remains unclear. Either
way, it is demonstrative of the fact that the ICC judges’ awareness for their
very own CoJE may not be as engrained as it may seem.
63
See Section 18.2. above.
64
Ibid., para. 15.
65
Ibid., para. 15, referring to ICTY, Prosecutor v. Delalić et al., Decision of the Bureau on
Motion on Judicial Independence, 4 September 1998, IT-96-21-T (https://www.legal-
tools.org/doc/c2f2bf/).
66
See, for example, Kevin John Heller, “Judge Ozaki Must Resign — Or Be Removed”, Opin-
io Juris, 29 March 2019 (available on its web site).

18.3.2.2. Impartiality
The initial wording of the principle of impartiality adopted by the ICC Co-
JE is reflected verbatim in the ECCC CoJE:
1. Judges shall be impartial and ensure the appearance of im-
partiality in the discharge of their judicial functions.
2. Judges shall avoid any conflict of interest, or being placed
in a situation which might reasonably be perceived as giv-
ing rise to a conflict of interest. 67
This largely reflects the jurisprudence discussed above in respect of the
disqualification of judges. 68
In respect of paragraph (1), the KSC CoJE implemented a slight
amendment, reflecting that judges “shall exercise their functions impartial-
ly” rather than simply “be impartial”. 69 This may be interpreted as the at-
tempt to narrow the concept of impartiality further and tie it to the actual
exercise of their judicial functions.
Regarding paragraph (2), one minor, yet noteworthy, amendment to
the above wording was implemented into the ICTY, STL, KSC and IRMCT
CoJEs: Instead of avoiding “being placed” in situations which might rea-
sonably be perceived as giving rise to a conflict of interest, judges shall
simply avoid such situations altogether:
1. Judges shall avoid any conflict of interest, as well as situa-
tions which might reasonably be perceived as giving rise to
a conflict of interest. 70
This may be read as reflecting the understanding that judges may not
only be passively placed in such situations but that there may be situations
where they actively contributed thereto – which shall be avoided altogether.
67
ICC CoJE, Article 4, see above note 4; ECCC CoJE, Article 2, see above note 5; ICTY CoJE,
Article 3, see above note 3; STL CoJE, Article 3, see above note 6; KSC CoJE, Article 4, see
above note 9; IRMCT CoJE, Article 3, see above note 8.
68
69
70
ICTY CoJE, Article 3, see above note 3; STL CoJE, Article 3, see above note 6; KSC CoJE,
Article 4, see above note 9; IRMCT CoJE, Article 3, see above note 8. Note that KSC CoJE,
Article 4 further specifies “any situation”.

18.3.2.3. Integrity
The principle of integrity, as reflected in the wording of the various CoJEs,
has undergone significant changes since the adoption of the initial version
of the ICC CoJE:
1. Judges shall conduct themselves with probity and integrity
in accordance with their office, thereby enhancing public
confidence in the judiciary.
2. Judges shall not directly or indirectly accept any gift, ad-
vantage, privilege or reward that can reasonably be per-
ceived as being intended to influence the performance of
their judicial functions. 71
Aside from minor amendment to paragraphs (1) 72 and (2), 73 the most
important change came with the addition of a new paragraph (3) in the IC-
TY, STL and IRMCT CoJEs:
3. Judges shall treat other judges and staff members with dig-
nity and respect, and shall not engage in any form of dis-
crimination, harassment, including sexual harassment, and
abuse of authority. 74
The addition of this paragraph marks a major step forward, even for
CoJEs not attaching disciplinary measures – the inclusion of this prohibi-
tion is emblematic of an awareness that judges may commit such offences
and that they should thus be subject to the same prohibitions in this respect
as any staff member of international organisations. 75 This stands in stark
contrast with the fact that similar prohibitions are missing from seminal
documents on the principles attaching to the judiciary, a number of which
71
ICC CoJE, Article 5, see above note 4.
72
“[…] in accordance with their judicial office […]”: ICTY CoJE, Article 3(1), see above note
3; STL CoJE, Article 4(1), see above note 6; IRMCT CoJE, Article 4(1), see above note 8.
73
“[…] the performance of their judicial functions or the independence of their office”. ECCC
CoJE, Article 3(2), see above note 5; ICTY CoJE, Article 4(2), see above note 3; STL CoJE,
Article 4(2), see above note 6; IRMCT CoJE, Article 4(2), see above note 8.
74
ICTY CoJE, Article 4(3), see above note 3; STL CoJE, Article 4(3), see above note 6;
IRMCT CoJE, Article 4(3), see above note 8.
75
For example, Prohibition of discrimination, harassment, including sexual harassment, and
abuse of authority, 11 February 2008, ST/SGB/2008/5 (https://www.legal-tools.org/doc/
ibc9oq/).

feature prominently in the preambles of the CoJEs discussed in the present

paper. 76
Stressing the significance of the concept of integrity even further, and
fleshing it out in a most detailed manner, Article 5 of the KSC CoJE marks
a further evolution in this respect, and it is worth repeating its relevant pro-
vision in full, highlighting relevant amendments and additions:
1. Judges shall conduct themselves with probity and integrity,
consistent with the high moral character required for their
judicial office.
2. Judges shall not directly or indirectly accept, offer or pro-
vide any gift, advantage, privilege or reward that may rea-
sonably be perceived as being intended to influence the
performance of their judicial functions.
3. Judges shall treat other Judges, Parties, participants in the
proceedings, staff members and others with dignity and re-
spect, and shall not engage in any form of discrimination,
harassment, including sexual harassment, and abuse of au-
thority.
4. Judges shall act at all times towards one another in a spir-
it of collegiality and professionalism.
5. Judges shall be mindful at all times of their duty to uphold
the standing and reputation of the Specialist Chambers.
6. Any Judge who is the subject of any disciplinary or work-
place investigation, procedure or sanction relating to pos-
sible misconduct before any jurisdiction shall immediately
provide full disclosure thereof to the President. If such a
case is still at the investigatory stage, the Judge shall in-
form the President of any development in a timely fash-
ion. 77
Article 5(1) of the KSC CoJE ties the probity and integrity of judges
directly to the ‘high moral character’ required for their office. This is a sig-
nificant step forward from the above jurisprudence on disqualification, in
which these requirements for judicial office were taken into consideration
to qualify the ‘reasonable observer test’ and thus effectively increased the
76
See United Nations Basic Principles on the Independence of the Judiciary, 1985, see above
note 40; Bangalore Principles, see above note 48; Recommendation of Committee of Minis-
ters, see above note 1.
77
Emphasis added.

level of a finding of bias or appearance of bias, precisely because of the

relevant statutory requirements and qualifications of judges. 78 This aspect
appears to be turned around in Article 5(1) of the KSC CoJE, whereby the
high moral character required for the judges’ office will, to the contrary,
lead to an increased scrutiny when it comes to probity and integrity.
Article 5(3) of the KSC CoJE is equally significant, in that it – cor-
rectly – broadens the scope of those which judges shall treat with dignity
and respect and in respect of whom they shall not engage in any form of
abuse, to include Parties and participants in proceedings as well as others.
Here, one may think in particular of any non-staff members of judicial in-
stitutions, such as consultants or interns, which there is no readily apparent
reason to exclude from this protection. To the contrary, it appears rather
concerning that it took until 2017 for a CoJE to include the latter in the pro-
tection against abuse and discrimination.
Article 5(4) of the KSC CoJE reflects a – seemingly self-evident, yet
fundamental – duty in the context of the exercise of judges’ profession,
found in most preambles to CoJEs which recognise that “Judges are mem-
bers of a collegial body”. The importance of fostering this aspect of profes-
sional relation has gained momentum during the past years. 79 This is
demonstrated, for example, by events dedicated to that very subject-
matter. 80 Its explicit inclusion in the KSC CoJE is, therefore, a reflection of
the importance that the aspect of collegiality amongst judges is gaining.
Article 5(5) and (6) of the KSC CoJE are equally important, as they
reflect that judges are neither above the law nor above the suspicion of
breaching the latter. In this respect, the obligations imposed upon them by
these sub-provisions are of particular interest as they mirror similar provi-
sions generally imposed upon defence counsel. 81
78
79
In a similar fashion, the ICC Code of Conduct for the Office of the Prosecutor was drafted in
order to serve as a “catalyst to unify the vision and harmonise the activities of the inherently
diverse membership of a unitary and permanent Office [of the Prosecutor] – one charged
with unique responsibilities to uphold international justice in a world shaped by increasingly
complex political, economic, social and moral crises and evolving collective patterns of re-
sponse”. See Nakhjavani, 2017, pp. 955–60, see above note 38.
80
See, for example, ‘ICC Judges hold retreat focusing on collegiality and various aspects of
judicial proceedings’, 28 September 2018, ICC-CPI-20180928-PR1412 (https://www.legal-
tools.org/doc/6ba117/).
81
See, for example, IRMCT, Code of Professional Conduct for Defence Counsel Appearing
Before the Mechanism, 14 November 2012, Article 3(v) (https://www.legal-tools.org/doc/

Overall, it is to be noted that the CoJEs have contributed, over time,

to strengthening the concept of the integrity of judges through the adoption
of further details in respect of this provision.
18.3.2.4. Confidentiality
The initial provision as contained in the ICC CoJE underwent minor
changes over the course of the adoption of subsequent CoJEs. The former
read as follows:
Judges shall respect the confidentiality of consultations which
relate to their judicial functions and the secrecy of delibera-
tions. 82
Subsequent versions have been amended with the addition of the fol-
lowing section:
Judges shall respect the confidentiality of consultations which
relate to their judicial functions, the secrecy of deliberations
and the confidentiality of information acquired in the course
of their duties, other than in public proceedings. 83
As such, the most recent versions clarify the concept initially put
forward by the ICC CoJE, in that the latter did arguably not cover confi-
dential information acquired outside of consultation and deliberations relat-
ing to judges’ judicial function. In that sense, a contribution has thus been
made to further detailing the obligation of confidentiality of judges.
Finally, it is noteworthy that the KSC CoJE, as the only CoJE, has
incorporated a general obligation that judge “exercise the utmost discre-
tion”, which may also be read as further fleshing out the obligation of in-
tegrity of judges.
18.3.2.5. Diligence
The early CoJE of the ICC and ECCC regarding the principles of diligence
read as follows:
eeb133/); ICC Code of Professional Conduct for counsel, Article 24(1), ICC-ASP/4/Res.1
(https://www.legal-tools.org/doc/f9ed33/); ICC Regulations of the Court, 26 May 2004,
Regulation 69(3) (https://www.legal-tools.org/doc/2988d1/).
82
ICC CoJE, Article 6, see above note 4.
83
ICTY CoJE, Article 5, see above note 3; STL CoJE, Article 5, see above note 6; KSC CoJE,
Article 6, see above note 9; IRMCT CoJE, Article 5, see above note 8; ECCC CoJE, Article

1. Judges shall act diligently in the exercise of their duties

and shall devote their professional activities to those duties.
2. Judges shall take reasonable steps to maintain and enhance
the knowledge, skills and personal qualities necessary for
judicial office.
3. Judges shall perform all judicial duties properly and expe-
ditiously.
4. Judges shall deliver their decisions [and any other rul-
ings] 84 without undue delay. 85
The ICTY, STL and IRMCT CoJEs subsequently chose to make par-
agraph (1) of this provision more concrete and to tie it to the judges’ judi-
cial duties. It was thus reformulated as follows:
1. Judges shall give precedence to their judicial duties over
all other activities. 86
The KSC CoJE combines both of the above alternatives and specifies
that this provision is only applicable insofar as a judge is assigned to a
Panel. 87 This is a reflection of the KSC system, which provides for a roster
of judges, which – unless specifically assigned to do so – do not perform
any judicial activities. 88
Paragraph (2) above remains unchanged in subsequent CoJEs, whilst
paragraphs (3) and (4) have been combined in the ICTY, STL and IRMCT
CoJEs to read as follows:
3. Judges shall perform their judicial duties efficiently. These
duties extend to the delivery of decisions fairly and with
reasonable promptness. 89
Finally, the KSC CoJE significantly expanded upon paragraphs (3)
and (4) above and adopted the following paragraphs instead:
3. Judges shall perform all judicial duties properly, efficiently
and expeditiously and shall not engage in conduct incom-
patible with the diligent exercise of their duties.
84
This was not part of ECCC CoJE, Article 5(4), see above note 5.
85
86
87
88
KSC Law, Article 26(2) see above note 46.
89
IRMCT CoJE, see above note 8.

4. Judges shall deliver their decisions and any other rulings

fairly, with reasonable promptness and without undue de-
lay.
5. Judges shall act at all times with the view of ensuring the
effectiveness of the Specialist Chambers. 90
The above emphasis on the efficient conduct of proceedings may be
seen as a reflection of the mandate of the KSC, which includes the delivery
of, inter alia, “fair and efficient criminal proceedings” in relation to rele-
vant allegations, in accordance with Article 1(2) of the KSC Law.
18.3.2.6. Conduct during Proceedings
Regarding the Conduct during Proceedings, the ICC and ECCC CoJEs
adopted the following provision:
1. In conducting judicial proceedings, judges shall maintain
order, act in accordance with commonly accepted decorum,
remain patient and courteous towards all participants and
members of the public present and require them to act
likewise.
2. Judges shall exercise vigilance in controlling the manner
of questioning of witnesses or victims in accordance with
the Rules and give special attention to the right of partici-
pants to the proceedings to equal protection and benefit of
the law.
3. Judges shall avoid conduct or comments which are racist,
sexist or otherwise degrading and, to the extent possible,
ensure that any person participating in the proceedings re-
frains from such comments or conduct. 91
The ICTY CoJE contains no such provision.
Regarding Paragraph (1), the STL and IRMCT CoJEs merely sup-
plemented the above wording with the requirements that judges also re-
main “attentive” 92 and “dignified” in conducting judicial proceedings, 93
90
KSC CoJE, Article 7(3)-(5), see above note 9.
91
92
The issue of a judge’s lack of attentiveness during proceeding was indeed subject of appel-
late proceedings before the ICTY, Delalić et al. Appeal Judgment, paras. 628–629, see above
note 18.
93
STL CoJE, Article 7(1), see above note 6; IRMCT CoJE, Article 7(1), see above note 8.

whilst the KSC CoJE added to that the requirement that judges be “respect-
ful”. 94
In addition, both the STL and IRMCT CoJEs specified at Para-
graph (2) that judges shall exercise vigilance in controlling the manner of
questioning of witnesses, “particularly when they are victims”. 95 In this
respect, the KSC CoJE went even further and, stressing that special atten-
tion should be given to the right “and interest” of participants in the pro-
ceedings. In addition, a second sentence was added to Paragraph (2):
“Judges shall exercise particular vigilance in respect of vulnerable witness-
es, including victims of sexual and gender based violence and children”. 96
Overall, this may be seen as reflecting the evolution of the role and posi-
tion of victims within international criminal justice – from mere witnesses,
at the ad hoc tribunals to actual participants in proceedings, at the ICC, the
STL and the KSC. In addition, it stresses the awareness amongst judges of
the particularly vulnerable nature of certain victims – there are indications
that in the past, this may not always have been the case. 97
Finally, the KSC CoJE adopted a shortened version of Paragraph (3)
above, removing the first part of the sentence and reformulating it as fol-
lows: “Judges shall, to the extent possible, ensure that any person partici-
pating in the proceedings refrains from comments or conduct which are
degrading”. 98 This shortening may simply reflect the fact that the first part
of Paragraph (3) may be seen as covered by Paragraph (1) in any case –
and that it would be duplicative to keep both provisions in this respect.
18.3.2.7. Public Expression and Association
The following provision is included in the ICC and ECCC CoJEs as far as
Public Expression and Association is concerned:
1. Judges shall exercise their freedom of expression and as-
sociation in a manner that is compatible with their office
and that does not affect or appear to affect judicial inde-
pendence or impartiality.
94
95
STL CoJE, Article 7(2), see above note 6; IRMCT CoJE, see above note 8.
96
97
See Binaifer Nowrojee, “‘Your Justice is Too Slow’ – Will the ICTR Fail Rwanda’s Rape
Victims?”, in United Nations Research Institute for Social Development, Occasional Paper
10, November 2005, pp. 23–24.
98

2. While judges are free to participate in public debate on

matters pertaining to legal subjects, the judiciary or the
administration of justice, they shall not comment on pend-
ing cases and shall avoid expressing views which may un-
dermine the standing and integrity of the Court. 99
The ICTY CoJE did not have an equivalent provision.
Regarding Paragraph (2), the STL, KSC and IRMCT CoJEs all add-
ed the obligation that judges “shall ensure that nothing in their conduct ev-
idences disrespect for the views of another judge or staff member”. 100 In
addition, the KSC CoJE specifies that the judges’ freedom to participate in
public debate on legal matters includes academic publications. 101
Finally, it is noteworthy that the KSC CoJE added the following two
Paragraphs to this provision, which, inter alia, provides for the necessity to
seek the approval of the President for the purpose of any media communi-
cation on matters related to the KSC and may thus be seen as a tool to
streamline communication by that institution:
3. When exercising their freedom of expression, Judges
shall avoid public statements or comments that may un-
dermine the authority of the Specialist Chambers or give
rise to reasonable doubt about their impartiality.
4. Judges shall seek prior approval of the President for any
communication with press or media on any matters relat-
ed to the Specialist Chambers. 102
18.3.2.8. Other/Extra-Judicial Activities

On the matter of Other/Extra-Judicial Activities, the ICC and ECCC CoJEs
include the following provision:
1. Judges shall not engage in any extra-judicial activity that is
incompatible with their judicial function or the efficient
and timely functioning of the Court, or that may affect or
may reasonably appear to affect their independence or im-
partiality.
2. Judges shall not exercise any political function. 103
99
100
STL CoJE, Article 8(2), see above note 6; KSC CoJE, Article 9(2), see above note 9;
101
102
Ibid., Article 9(3)-(4).

The ICTY CoJE did not include an equivalent provision, whilst the
STL, KSC and IRMCT CoJEs did not include Paragraph (2) above in their
equivalent provision. 104 It may be questioned whether this was because the
judges determined that it was covering a scenario obviously falling under
Paragraph (1) and that thus did not need to be further specified, or because
they considered that a political function was not per se incompatible with a
judicial function.
The case discussed above 105 demonstrates that this is not an abstract
question, but that it has concrete implications for ICTs, wherebyjudges may
be called upon to take up a position within a country’s executive. It is sug-
gested that it would perhaps have been wise to retain this provision in order
to provide clarity in this respect. On the other hand, it is recalled that Euro-
pean Court of Human Rights jurisprudence does not regard judicial and
executive functions as per se mutually exclusive, where matters to be de-
cided upon in their judicial functions fall outside of the ambit of powers
exercised as part of their executive functions. 106 It is perhaps in light of
such jurisprudence that the categorical exclusion clause contained in Para-
graph (2) above was removed by the STL, KSC and IRMCT CoJEs.
Finally, it is noted that the KSC CoJE, in fact, adopted its very own
version of this provision, reflecting once more its structure as tribunal func-
tioning with a roster of judges, who will exercise judicial functions only if
and when assigned to do so by the President:
In accordance with Article 26(4) of the Law, any activity un-
dertaken by Judges other than that before the Specialist
Chambers shall be compatible with their judicial functions
and the efficient and timely functioning of the Specialist
Chambers. 107
Indeed, judges of the KSC must be able to continue their regular pro-
fessional activities pending any assignment to exercise judicial functions
with the KSC – as long as it is compatible with these judicial functions, and
with the efficient and timely function of the institution.
103
104
STL CoJE, Article 9, see above note 6; IRMCT CoJE, Article 9, see above note 8.
105
See Section 18.3.2.1. above.
106
European Court of Human Rights (‘ECHR’), Sramek v. Austria, Judgment, 22 October 1984,
App. No. 8790/79, para. 40 (https://www.legal-tools.org/doc/de30a4/).
107
KSC CoJE, Article 10, see above note 9.

18.3.2.9. Decorations and Honours

Finally, it is noted that the KSC CoJE is the only one which regulates the
awarding of decorations and honours to judges:
Judges may accept decorations and honours only where such
acceptance does not give rise to a reasonable doubt as to their
independence or impartiality. The President shall be informed
before any such acceptance. 108
This may, in fact, be read as simply further specifying the principles
of independence and impartiality for the particular case of receiving deco-
rations or honours.
18.3.2.10. Conclusion
The above demonstrates that – over time – judges have not only signifi-
cantly expanded the level of details which describe the principles applica-
ble to the exercise of their judicial functions, but they have also added a
new range of principles, fitting the particularities of the structure of each
ICT. This is a significant positive development. 109 Vis-à-vis States – as cre-
ators of such ICTs – it demonstrates the seriousness with which judges ap-
proach the principles applicable to their profession and their awareness of
the development of these principles and of the necessity to adopt and adapt
CoJEs accordingly. States should readily acknowledge this message and
create a clear framework for judicial ethics in future ICTs – either by them-
selves adopting CoJEs, or through the creation of sound legal bases for that
purpose. 110 Vis-à-vis parties and participants in the proceedings, it sends the
unequivocal message that judges are aware that they are not ‘above the
law’ and that, as any lawyers, they are subject to clear ethical principles.
CoJEs are, therefore, a crucial tool in order to foster a culture of mutual
respect amongst parties and participants in the courtroom, thus significant-
ly strengthening the overall integrity of proceedings.
18.4. Codes of Judicial Ethics – Disciplinary Procedures
The ECCC, ICTY and STL CoJEs do not include any disciplinary proce-
dures for the purpose of enforcing the various principles contained in those
108
Ibid., Article 11.
109
See Bergsmo, 2018, p. 3, see above note 2.
110
Ibid.

CoJEs. The following section will thus focus on the procedures in place at
the ICC, the KSC and the IRMCT.
The disciplinary procedure at the ICC is not included in the CoJE it-
self – rather, the latter is found scattered throughout various regulatory
documents: Articles 46 and 47 of the ICC Statute; Rules 23-32 of the ICC
RPE; Regulations 119-125 of the Regulations of the Court. Both the KSC
and IRMCT CoJEs include a disciplinary procedure.
These procedures will be analysed in the following, focusing on the
definition of disciplinary offences, the procedure to be followed and the
sanctions to be imposed.
18.4.1. Disciplinary Offences
18.4.1.1. ICC
The ICC regime differentiates between “serious misconduct and serious
breach of duty”, defined in Rule 24 of the ICC RPE, and “misconduct of a
less serious nature”, defined in Rule 25 of the ICC RPE. The former is
linked to Article 46(1)(a) of the ICC Statute and may lead to removal from
office, whilst the latter is tied to Article 47 of the ICC Statute and may trig-
ger the imposition of disciplinary measures.
Rule 24(1) of the ICC RPE further differentiates between serious
misconduct in, and outside the course of official duties. Pursuant to
Rule 24(1)(a), the former constitutes conduct which is “incompatible with
official functions, and causes or is likely to cause serious harm to the prop-
er administration of justice before the Court or the proper internal function-
ing of the Court”. A non-exhaustive list of three examples is included. Pur-
suant to Rule 24(1)(b), serious misconduct outside the course of official
duties takes place where it is of grave nature that causes or is likely to
cause serious harm to the standing of the Court. “Serious misconduct” has
thus been interpreted to cover “not only professional conduct in relation to
the duties of the office but also personal behaviour in general and is there-
fore broader than ‘breach of duty’ which relates only to the duties of the
office”. 111
Pursuant to Rule 24(2), a “serious breach of duty” takes place where
a judge has been “grossly negligent in the performance of his or her duties
or has knowingly acted in contravention of those duties”. Here also, a non-
111
Triffterer and Ambos, 2016, para. 8, see above note 43.

exhaustive list of two examples is provided. It has been suggested that a

“serious breach of duty” provides for a “more limited ground for removal
that will specifically be assessed in relation to, inter alia, the duties of in-
dependence, impartiality and conscientiousness, as referred to in Arti-
cles 40 and 45” of the ICC Statute. 112 Indeed, it is noted that Article 46(1)(a)
of the ICC Statute ties a removal from office to a finding that a judge
committed a “serious breach of his or her duties under this Statute”. 113 This
has been interpreted as potentially covering
all duties and responsibilities of the official concerned which
flow from the Statute and not only such duties which are ex-
plicitly specified in the Statute. […] Such an interpretation
would also allow for the [ICC CoJE] to be taken into account
when considering whether a Judge has acted in contravention
of Articles 46 or 47 of the Statute. 114
As far as “misconduct of a less serious nature” is concerned, Rule 25
of the ICC RPE reflects the separation between conduct in the course of
(Rule 25(1)(a)) and outside the course of (Rule 25(1)(b)) judicial duties.
Qualified by a lesser threshold, it has been interpreted as covering all mis-
conduct not envisaged by Article 46. 115
18.4.1.2. KSC
Articles 13 and 14 of the KSC CoJE respectively provide for definitions of
“serious misconduct” and “misconduct of a less serious nature”. In a simi-
lar fashion as for the ICC, “serious misconduct” may lead to a removal
from the roster of KSC judges pursuant to Articles 21 of the KSC CoJE and
31(4) of the KSC Law – whilst “misconduct of a less serious nature” may
trigger the imposition of disciplinary measures in accordance with Arti-
cle 22 of the KSC CoJE.
In respect of “serious misconduct”, the KSC CoJE does not provide
for the clear differentiation between such conduct in the course and outside
of official duties, as found in the ICC RPE. It does, however, include two
alternatives at Article 13(1)(a) 116 and (b), which are almost identical to the
112
Ibid., para. 8.
113
Emphasis added.
114
Ibid., para. 9.
115
Ibid., Article 47, para. 3.
116
Very limited variations in language are found in Article 13(1)(a)(i) (“[…] where such disclo-
sure seriously prejudicial to […]”), 13(1)(a)(ii) (“concealing or withholding information or

wording of Rule 24(1)(a) and (b) of the ICC RPE. In addition, Arti-
cle 13(1)(b) of the KSC CoJE provides two examples, reflecting situations
which could readily fall outside the course of official duties, namely:
(i) the commission of a criminal act which reflects adversely on the
Judge’s honesty and trustworthiness as a Judge; and
(ii) the engagement in conduct involving harassment, abuse of authority,
dishonesty, fraud, deceit or misrepresentation.
In the light of the above, Article 13(1)(a) could be interpreted as re-
flecting conduct occurring in the course of official duties, whilst Arti-
cle 13(1)(b) reflects conduct occurring outside such duties.
Article 14 of the CoJE provides a definition of “misconduct of a less
serious nature”. Here again, two alternatives are provided. Under Arti-
cle 14(1)(a), “misconduct of a less serious nature” is conduct that “causes
or is likely to cause harm to the proper administration of justice before the
Specialist Chambers or the proper internal functioning of the Specialist
Chambers”. A non-exhaustive list of examples is provided in this respect.
Pursuant to Article 14(1)(b), “misconduct of a less serious nature” is con-
duct that “causes or is likely to cause harm to the standing of the Specialist
Chambers”. No examples are provided in this respect. As in respect of Ar-
ticle 13 KSC CoJE, in light of the above examples, it may be suggested
that Article 14(1)(a) is concerned with misconduct committed in the course
of judicial duties, whilst Article 14(1)(b) captures a more broader category
of misconduct which may also include instances occurring outside such
duties, but which may nevertheless have an impact on the standing of the
Specialist Chambers.
18.4.1.3. IRMCT
Whilst the ICC and KSC have implemented very similar definitions of
misconduct, the IRMCT chose a different path. Indeed, pursuant to Arti-
cle 11(2)(a) of the IRMCT CoJE, “misconduct refers to conduct that consti-
tutes a violation of the standards set forth in this Code”. The brevity of this
provision is striking, and appears to have been inspired by Article 35(i) of
circumstances […]”) and 13(1)(a)(iii) (“[…] in order to obtain unwarranted favourable

treatment […]”) (emphasis and strikethrough supplied by the author).

the IRMCT Code of Professional Conduct for Defence Counsel Appearing

Before the Mechanism: 117
It shall be professional misconduct for Counsel, inter alia, to:
(i) violate or attempt to violate the Statute, the Rules, this
Code or any other applicable law, […].
However, Article 11(2)(a) of the IRMCT CoJE, when compared to
both the ICC and KSC regimes, as well as with the IRMCT regime in place
for counsel is striking more in terms of what is missing than what is actual-
ly said. In particular, it is questionable whether a judge would be held re-
sponsible for an attempt to violate the IRMCT CoJE. In addition, violations
are limited to the provisions of “this Code”. They do not include the
IRMCT Statute, RPE or any other applicable law, as it is the case for de-
fence counsel before the IRMCT. In this respect, one may question whether
the judges are applying a higher standard to counsel that to themselves.
On the other hand, the broad wording of this provision could allow
for a particularly wide interpretation of “misconduct” for the purpose of the
IRMCT CoJE – which, in turn, could lead to significant insecurity for the
judges to whom the CoJE applies. Indeed, it is unclear what would amount
to an actual ‘violation’ of a provision of the CoJE, particularly in light of
the broad range of obligations incumbent upon judges pursuant to the CoJE.
Taking Article 6(2) of the IRMCT CoJE as an example, would a judge who
does not attend any lectures over the course of a few years be in violation
of the obligation to “take reasonable steps to maintain and enhance their
knowledge, skills and personal qualities necessary for judicial office”?
18.4.2. Procedure before the KSC and the IRMCT
18.4.2.1. Submission of Complaint
Articles 15 of the KSC CoJE and 11(1) of the IRMCT CoJE provide that a
complaint shall be transmitted directly to the President, whilst he or she
may also proprio motu initiate proceedings. 118 Article 15(3) of the KSC
CoJE specifies that, where a complaint is brought against the President, the
117
IRMCT Code of Professional Conduct for Defence Counsel Appearing Before the Mecha-
nism, see above note 81.
118
Where the President proprio motu initiates proceedings, the IRMCT CoJE, see above note 8,
specifies that the complaint would be addressed to the Judge who assumes the President’s
functions in accordance with Rule 24 of the IRMCT RPE, see above note 13. For the pur-
pose of the present description, references to the ‘President of the IRMCT’ shall be read as
including references to the Judge who assumes the President’s functions.

Vice-President assumes his or her function for the purpose of disposing of

the complaint.
Articles 15(5) of the KSC CoJE and 11(6) of the IRMCT CoJE set
out the details to be contained in a complaint, which notably includes the
identity of the complainant.
Article 15(1) of the KSC CoJE helpfully defines the scope of “Com-
plainant”, thus preventing anyone from claiming standing for the purpose
of the disciplinary procedure under the CoJE. Indeed, complaints may be
submitted by “a Judge, a staff member, a Party or a participant in the pro-
ceedings before the Specialist Chambers, the Registrar or any other person
alleging that their rights or interests have been substantially affected by an
alleged misconduct”. By contrast, the IRMCT CoJE does not provide a def-
inition of complainant, and it may, therefore, be assumed that anyone could
file a complaint, with no limitation in respect of standing.
As for the timing of a complaint, Article 15(4) of the KSC CoJE pro-
vides for some flexibility in this respect, in specifying that a complaint
must be submitted within six months after the complainant should have
reasonably known about the existence or occurrence of the alleged miscon-
duct. In addition, a matter may be pursued after this time limit if it is of
general importance to the Specialist Chambers. By contrast, pursuant to
Article 11(4) of the IRMCT CoJE, a complaint must be filed within 60
days of the date on which the alleged misconduct took place, or good cause
must be shown for any delay. It is noted that the KSC CoJE allows for
more flexibility than Article 11(4) of the IRMCT CoJE, as the time limit
does not start running with the occurrence of the event in question, but with
the moment in time when the complainant should have reasonably known
about this occurrence.
18.4.2.2. Preliminary Verification
Article 17 of the KSC CoJE provides for the possibility of a two-layered
verification and potential summary dismissal of a complaint by the KSC
President. First, the KSC President shall dismiss a complaint if it is anon-
ymous or if it is considered vexatious, misconceived, frivolous or lacking
in substance or out of time. Second, where the President does not consider
the complaint prima facie vexatious, misconceived, frivolous or lacking in
substance – or where the President has initiated disciplinary proceedings
proprio motu, the complaint is transmitted to the responding judge pursuant
to Article 17(2) of the KSC CoJE. On the basis of his or her views, the

President renders a decision, determining whether the complaint should be

summarily dismissed as manifestly ill-founded or not substantiated.
Similarly, pursuant to Article 12(1) of the IRMCT CoJE, a complaint
is subjected to a preliminary examination in the course of which the Presi-
dent will examine the complaint to determine what action, if any, is war-
ranted. Complaints which are “manifestly unsubstantiated or otherwise un-
receivable” shall be summarily dismissed – the broad wording of “other-
wise unreceivable” is symptomatic of the wide margin of discretion which
the IRMCT President enjoys in this preliminary examination. Notably, at
his or her discretion, a complaint related to a pending case may be deferred
until such time as the case is disposed of. Again, at his or her discretion, the
IRMCT President may also consult other judges in reaching a decision re-
garding a complaint. Where the IRMCT President has not summarily dis-
missed a complaint, it is provided to the judge concerned pursuant to Arti-
cle 12(2) of the IRMCT CoJE for the purpose of providing comments
thereon. Having received these comments, the President is – once again –
provided with substantial discretion on how to proceed pursuant to Arti-
cle 12(3) and (4) of the IRMCT CoJE: if he or she decides that “no further
action in relation to the Complaint is appropriate”, the complainant and
judge concerned will be informed accordingly. If, on the other hand, the
President decides that there is “a reasonable and sufficient basis to proceed
with further action”, the complainant and the judge concerned will be so
advised. Again, the lack of details and hence the wide discretion enjoyed
by the President is to be noted, allowing for substantial flexibility in the
handling of complaints. Along these lines, Article 12(7) of the IRMCT Co-
JE also provides that a complaint may be closed, in case it is “informally
resolved to the satisfaction of the Complainant and the Judge Concerned at
any time during its pendency” – unless, exceptionally, the President decides
to pursue the complaint proprio motu.
18.4.2.3. Investigation of Complaint
Where the KSC President does not summarily dismiss the complaint, he or
she must designate a disciplinary board pursuant to Article 18(2) of the
KSC CoJE, composed of three members “two of whom at least shall be
from the judiciary, […] either from judges of international or international-
ised courts or judges of domestic courts with extensive experience in ethics
or in the investigation of professional misconduct. The third member may
be a senior appointee of the European Union”. Article 18(4) of the KSC

CoJE provides for details on the investigatory powers of the disciplinary

board. Inter alia, the disciplinary board may order the responding judge to
produce documents related to the subject-matter of the complaint and to
otherwise assist in and co-operate with the inquiry into the complaint in a
specified manner. It may also order the Registrar to provide access to elec-
tronic data of the KSC related to the disciplinary allegations. This provides
for significant clarity as to the investigatory powers and foreseeability of
the procedure for the responding judge. The disciplinary board transmits
preliminary conclusions to the responding judge, and invites him or her to
respond accordingly. Pursuant to Article 18(6), the disciplinary board sub-
mits to the President a detailed report on the results of the inquiry, includ-
ing recommendations in respect of each allegation and specific disciplinary
measures to be imposed. The report is provided to the complainant and to
the responding judge.
At the IRMCT, where the IRMCT President has decided that there is
a “reasonable and sufficient basis to proceed with further action”, he or she
must establish a “panel of outside experts” pursuant to Article 13(1) of the
IRMCT CoJE to investigate the allegations and report its conclusions and
recommendations. This panel shall be composed of three members, who
shall be “judges, former judges or other eminent jurists”, taking into ac-
count geographical distribution and gender balance. Pursuant to Arti-
cle 13(3) of the IRMCT CoJE, it is the IRMCT President who establishes
the terms of references for the panel, which “shall contain provisions en-
suring respect for the procedural rights of the complainant and the judge
concerned”. What investigatory powers the panel thus has is not further
specified – and appears to be left to the discretion of the IRMCT President,
to be determined for any given panel on a case-by-case basis. Finally, pur-
suant to Article 13(4), the panel shall complete its investigation and report
to the President within three months of referral of the complaint.
18.4.2.4. Procedure before the Plenary
At the KSC, pursuant to Article 20(1) of the KSC CoJE, the report of the
disciplinary board is only transmitted to the other judges where there has
been a conclusion that the responding judge has committed one or more of
the allegations in the complaint. Having deliberated upon the allegations,
the judges vote thereon. It is noteworthy that, pursuant to Article 20(3) of
the KSC CoJE, both the complainant, if a judge, and the responding judge,
may participate in the Plenary, but do not participate in the deliberations

and voting. In particular, the responding judge may be heard, answer any
questions put to him or her, and provide further clarifications.
As far as the imposition of sanctions is concerned, and where the
judges conclude that an allegation of serious misconduct has been estab-
lished, they must decide by an absolute majority on the dismissal of the
responding judge from the roster, pursuant to Article 21(1) of the KSC Co-
JE. In this respect, Article 21 of the KSC CoJE is reflective of Article 31(4)
of the KSC Law. Where an absolute majority of judges favours a dismissal,
Article 21(2) of the KSC CoJE provides that it shall have “immediate ef-
fect” and that the responding judge “cease[s] to be part of the Specialist
Chambers”. Pursuant to this provision, there is no necessity for a recom-
mendation to the Appointing Authority to dismiss the judge and it is the
Plenary which takes the actual decision of dismissal. Considering that, pur-
suant to Article 28(4) of the KSC Law, it is the Appointing Authority which
appoints the KSC judges and places them on the roster for the duration of
the existence of the KSC, it is debatable whether the KSC judges them-
selves have the authority to dismiss one of their peers from the roster. Arti-
cle 31(4) of the KSC Law merely provides that no KSC judge may be dis-
missed – without specifying by whom – unless the absolute majority of
judges finds that “he or she has ceased to fulfil the requirements of Arti-
cles 27 and 31”. This would merely appear to provide the authority to the
Plenary to determine whether a judge has ceased to fulfil these require-
ments. Whether, in addition thereto, this amounts to a delegation of au-
thority to the Plenary for the actual dismissal of a judge may readily be
questioned. Article 31(4) of the KSC Law is less than clear in this respect
and the basic principle in cases of actus contrarius, applicable in European
Union (‘EU’) administrative law, 119 would dictate that a decision such as
the appointment of a judge to a roster may only be reversed by the authori-
ty who made the initial appointment, that is, the Appointing Authority.
However, as there is no jurisprudence as of yet in this respect, this question
must remain open for the time being.
Further, in case any allegations of misconduct of a less serious nature
are established, Article 22(2) of the KSC CoJE provides for a catalogue of
119
“[I]n accordance with a general principle of law that, in principle, a body which has power
to adopt a particular legal measure also has power to abrogate or amend it by adopting an
actus contarius, unless such power is expressly conferred upon another body.” The Court of
First Instance of European Communities, Lagardière and Canal+ v. Commission, Judgment,
20 November 2002, T-251/00, para. 130 (https://www.legal-tools.org/doc/510mj2/).

disciplinary measures which may be imposed. These include a formal and

written admonishment by the Plenary, reporting to the State who nominated
the responding judge, suspension from assignment to cases for a period not
exceeding one year, reporting to the professional bodies to which the re-
sponding judge may belong and a pecuniary sanction not exceeding 2,000
Euro.
At the IRMCT, pursuant to Article 14(1) of the IRMCT CoJE, the
President transmits the report of the panel of outside experts to all judges,
with the exception of the judge concerned. The former review the report
and indicate whether “(a) the complaint is well-founded; and, if so, (b)
whether the matter is of sufficient severity to suggest that the removal of
the judge concerned is warranted”. This two-pronged procedure provides
for an additional layer of safeguards for the judge concerned– three scenar-
ios are envisaged pursuant to Article 14(3) of the IRMCT CoJE:
(iii) Where a majority of judges take the position that the complaint is not
well-founded, it is closed; 120
(iv) Where a majority of judges deem the complaint well-founded, but
less than a two-third majority deem the matter of sufficient gravity to
remove the judge concerned, the President shall take “such corrective
action as he or she deems appropriate”. 121 Again, broad discretion is
provided to the President in his handling of the matter. What ‘correc-
tive action’ entails is further specified at Article 14(5) of the IRMCT
CoJE and “may include an oral or written reprimand, written censure,
temporary suspension, or other appropriate sanction”;
(v) Finally, where a two-thirds majority of the judges deem the com-
plaint well-founded and the matter of sufficient gravity to suggest the
removal of the judge concerned, the President “shall report the matter
to the Secretary-General to request the removal of the judge con-
cerned”. 122 At this point, no discretion is left to the President – he or
she must request the removal of the judge concerned. Whether the
Secretary-General is bound by this request is a different question and
may – for lack of jurisprudence in this respect – not be answered.
At this juncture, however, it is of particular interest to note that the
IRMCT CoJE gives neither the IRMCT judges nor its President the actual
120
IRMCT CoJE, Article 14(3)(a), see above note 8.
121
Ibid., Article 14(3)(b).
122
Ibid., Article 14(3)(c).

authority to remove an IRMCT judge from the roster. The only authority
provided by the IRMCT CoJE is that of reporting the matter to the authori-
ty who (re-)appoints IRMCT judges in accordance with Article 10(2), (3)
and (4) of the IRMCT Statute, that is, the UN Secretary-General, and to
request the removal of the judge concerned. It is interesting to note that the
authority which elects IRMCT judges, that is, the UN General Assembly in
accordance with Article 10(1) of the IRMCT Statute, is not involved in the
process. However, this would indicate at least to a certain extent that the
administrative act of appointment may only be reversed by the authority
who made an appointment –if and when the question arises at the KSC, the
IRMCT CoJE will thus be an interesting source to look into in order to fur-
ther interpret Articles 21 of the KSC CoJE and 31(4) of the KSC Law.
18.4.3. Procedure before the ICC
As spelled out above, the procedure before the ICC is set out in various
regulatory documents, namely the ICC Statute, its RPE and the Regulations
of the Court. 123 It is worth having a detailed look in this respect, particular-
ly because the initial regulatory framework was recently amended in the
ICC RPE. The following section will therefore outline the initial procedure,
followed by an analysis of the amendment thereto.
18.4.3.1. Initial Procedure 124
In its initial version, Rule 26(2) provided for any complaint to be transmit-
ted to the Presidency, which also had the competence to proprio motu initi-
ate proceedings. In accordance with this provision as well as with Regula-
tion 119(1), the Presidency then set aside anonymous or manifestly un-
founded complaints, with the assistance of three judges assigned on the
basis of automatic rotation. With the possibility of seeking submissions
from the persons being complained against or from the complainant, in ac-
123
For the purpose of the following section, any reference to ‘Article’ shall be a reference to the
ICC Statute; to ‘Rule’ shall be a reference to the ICC RPE; to ‘Regulation’ shall be a refer-
ence to the ICC Regulations of the Court.
124
See ICC Rules of Procedure and Evidence, 9 September 2002, Rule 26(2) (‘ICC RPE’)
(https://www.legal-tools.org/doc/8bcf6f/). It is noted that the initial version of Rule 26 of the
ICC RPE gave the Presidency the competence to receive complaints not only against Judges,
but also against the Prosecutor, the Registrar and the Deputy Registrar, as reflected not only
in the initial version of Rule 26(1) of the ICC RPE but also in Regulation 119(1) of the Reg-
ulations of the Court. For the purpose of the present paper, the focus will be on complaints
against Judges. As per the amended version of Rule 26(2), as set out below, the overall com-
petence of the Presidency has now been moved to the IOM.

cordance with Regulation 119(2), these three judges made a recommenda-

tion to the Presidency on whether or not to set aside the complaint, and
whether or not the complaint related to conduct which fell manifestly out-
side Rule 24. Pursuant to Regulation 119(3), the Presidency was free to
accept or reject the recommendations of the three judges. Pursuant to
Regulation 121(1), where the Presidency decided not to set aside a com-
plaint against a judge, a question of removal from office was transmitted to
a Plenary session for a vote – unless the complaint fell manifestly outside
the scope of Rule 24, in which case it was considered by the Presidency
directly, pursuant to Article 47, Rule 30(1) and Regulation 122.
The remainder of the procedure regarding a question of removal
from office remains the same: Pursuant to Rule 29(1), the Presidency ad-
vises the Bureau of the Assembly of States Parties (‘ASP’) of any recom-
mendation adopted by the Plenary in this respect. In accordance with Arti-
cle 46(2), the actual decision in this respect is subsequently taken by a
two-thirds majority of the States Parties upon a recommendation by a two-
thirds majority of the judges. Removal from office, once pronounced, takes
effect immediately in accordance with Rule 31.
When and after the Presidency determined that the conduct falls
manifestly outside the scope of Rule 24, the following procedure also re-
mains the same: In accordance with Rule 30(1), any decision to impose a
disciplinary measure is taken by the Presidency. The latter include, pursu-
ant to Rule 32, a reprimand or a pecuniary sanction which may not exceed
six months of the salary of the judge. A decision of the Presidency to im-
pose disciplinary measures may be appealed to the Plenary by the judge
concerned pursuant to Regulation 122(2).
18.4.3.2. Amended Procedure
On 11 December 2018, the ASP amended Rule 26 of the ICC RPE, 125
which now provides as follows:
1. For the purposes of article 46, paragraph 1, and article 47
of the Statute, any complaint concerning any conduct de-
fined under rules 24 and 25 shall include the grounds on
which it is based and, if available, any relevant evidence,
and may also include the identity of the complainant. The
complaint shall remain confidential.
125
Resolution on amendments to rule 26 of the Rules of Procedure and Evidence, 11 December
2018, ICC-ASP/17/Res.2 (https://www.legal-tools.org/doc/mhkgg7/).

2. All complaints shall be transmitted to the Independent

Oversight Mechanism which may also initiate investiga-
tions on its own motion. Any person submitting such com-
plaints may also elect to submit a copy to the Presidency of
the Court for information purposes only.
3. The Independent Oversight Mechanism shall assess com-
plaints and set aside those complaints which are manifestly
unfounded. Where a complaint is set aside as manifestly
unfounded, the Independent Oversight Mechanism shall
provide its reasons in a report which shall be transmitted
to the Assembly of States Parties and the Presidency.
4. All other complaints shall be investigated by the Independ-
ent Oversight Mechanism. The Independent Oversight
Mechanism shall transmit the results of any investigation,
together with its recommendations, to the Assembly of
States Parties and any other competent organ(s) as set out
in articles 46 and 47 of the Statute, and rules 29 and 30. 126
Two crucial matters stand out.
Firstly, the competence to receive and investigate complaints against
judges has been moved squarely from the Presidency to the Independent
Oversight Mechanism (‘IOM’), thus removing a significant competence of
the ICC Presidency. New Rules 26(3) and (4) accordingly provide for the
procedure to be applied in this respect. It is striking to note that the Regula-
tions of the Court (adopted by the judges in accordance with Article 52)
have not been adapted to this new version of Rule 26 of the ICC RPE
(adopted and amended by the ASP in accordance with Article 51). 127 Dur-
ing the process leading to the adoption of the amendment, a representative
of the ICC Presidency noted that the relevant Regulations of the Court
“would need to be amended or deleted, but this would follow on from the
amendment of the higher norm, the RPE”. 128 Whether the delay in the
amendment of the Regulations of the Court is merely due to the fact that
126
“Draft resolution on amendments to rule 26 of the Rules of Procedure and Evidence”, an-
nexed to Report of the Working Group on Amendments, 29 November 2018, ICC-
ASP/17/35 (emphasis added).
127
See ICC Regulations of the Court, Regulations 119-122, see above note 81.
128
“Report of the Study Group on Governance Cluster I in relation to the amendment to rule 26
of the Rules of Procedure and Evidence”, annexed to Report of the Bureau on the Study
Group on Governance, 27 November 2018, ICC-ASP/17/30, para. 22 (‘Report ICC-
ASP/17/30’) (https://www.legal-tools.org/doc/faoyip/).

the amendment to Rule 26 (December 2018) was adopted after the most
recent amendment to the Regulations of the Court (November 2018), is
thus open for speculation.
Relevant resolutions indicate that this fundamental amendment of
Rule 26 derives from the necessity to make it compatible with the opera-
tional mandate of the IOM, 129 created in 2009 130 with its operational man-
date defined in 2013. 131 The ASP requested that such an amendment be
considered, 132 and the amendment itself was then recommended by the
Study Group on Governance 133 and the Working Group on Amendments. 134
During consultations in respect of this amendment, the ICC Presi-
dency noted that – since the establishment of the IOM – a practice had de-
veloped whereby the Presidency would send any complaints received to the
IOM, which reported the result of its investigation to the Presidency,
which – in turn – would send the report to the panel of three judges. A for-
mer head of the IOM had accordingly suggested that an amendment be
adopted to reflect this practice. 135 However, during consultations, a range
of States Parties noted the need to avoid “any potential conflict of interest
between the role of those who judge and those who are to be judged and
the necessity for an independent and impartial investigation”. 136 A drafting
option retaining a role for the Presidency and the judges in the investiga-
tion whilst reflecting the IOM’s mandate was eventually rejected in favour
of the current version, which clearly removes any role of the Presidency
and judges in the investigation and thus provides for the IOM alone to con-
duct the investigation and make recommendations to the ASP and the Pres-
129
Ibid., para. 3.
130
ICC, Establishment of an independent oversight mechanism, adopted on 26 November 2009,
Resolution ICC-ASP/8/Res. 1 (https://www.legal-tools.org/doc/bf0e8c/).
131
ICC, Independent Oversight Mechanism Resolution, adopted on 27 November 2013, ICC-
ASP/12/Res.6 (https://www.legal-tools.org/doc/64ebeb/).
132
ICC, “Mandate of the Assembly of State Parties for the intersessional period”, annexed to
Strengthening the International Criminal Court and the Assembly of States Parties, adopted
on 14 December 2017, Resolution ICC-ASP/16/Res.6, para. 9(c) (https://www.legal-
tools.org/doc/36d60d/).
133
Report ICC-ASP/17/30, paras. 26–27, see above note 128.
134
ICC, Report of the Working Group on Amendments, 29 November 2018, Report ICC-ASP/
17/35, paras. 17–20, 28 (https://www.legal-tools.org/doc/ceidsz/).
135
Report ICC-ASP/17/30, para. 11, see above note 128.
136
Ibid., para. 12.

idency accordingly. In favouring this option, the necessity for clarity on the
leadership of investigation was stressed by a range of States Parties. 137
In so doing, the ICC aligned its procedure with that applied at the
KSC and the IRMCT, namely allowing for an investigation to be conducted
by an independent body. Although the IOM is established as subsidiary
body of the ASP in accordance with Article 112(4) and thus would not
strictly qualify as ‘external’, this amendment remains a significant step
forward from the initial procedure, which provided for three ICC judges
respectively the Presidency to investigate and make recommendations on
allegations in respect of their own colleagues. As noted by a range of States
Parties, it thus constitutes a momentous step forward vis-à-vis the initial
version of the procedure and towards guaranteeing its fairness and trans-
parency. 138
Ultimately, the decision on whether or not to remove a judge still re-
mains subject to a vote by the Plenary, in accordance with Rule 29(1), and
to a decision by the ASP, pursuant to Article 46(2)(a). This is similar to the
procedure applied at the IRMCT and is a further confirmation of the prac-
tice of actus contrarius – namely that a decision of removal of a judge may
ultimately only be taken by the ASP, as the body which elected the judge in
the first place pursuant to Article 36(6). Further, a decision to impose disci-
plinary measures remains within the competence of the Presidency, in ac-
cordance with Rule 30(1). Again, this follows the procedure applied at the
IRMCT, and – to a certain extent – at the KSC, where the latter decision is
left with the Plenary rather than the President.
The second crucial matter regulated in the recent amendment to
Rule 26 is the possibility of submitting anonymous complaints: indeed, the
first sentence of the new Rule 26(1) in fine provides that a complaint
“may” include the identity of the complainant. This is a fundamental
amendment vis-à-vis the initial version, which provided for the Presidency
to set aside anonymous complaints. In so doing, the ICC disciplinary pro-
cedure moves away from the procedure applied at the IRMCT and the KSC,
where the identity of the complainant has to be included, and anonymous
complaints must accordingly be summarily dismissed. 139
137
138
Ibid., para. 12.
139
See KSC CoJE, Articles 15(5)(a) and 17(1), see above note 9 and IRMCT CoJE, Article
11(6)(a), see above note 8; It is noted that, unlike the KSC CoJE, the IRMCT CoJE does not

During the process of adoption of this amendment, States Parties

noted their concern that anonymous complaints should not automatically be
set aside and stressed that “although [they] should not be the norm, there
were occasions where complainants may justifiably not wish to provide
their identity, for example, in cases of whistle-blowing”. 140 The current
wording of Rule 26(1) reflects the agreement that whilst, as a general rule,
the identity of the complainant should be included, anonymous complaints
should not automatically be dismissed and could exceptionally be investi-
gated by the IOM. 141 How such complaints will be handled in practice re-
mains to be seen. The necessity for adjustments to the IOM mandate and
operational manual in order to provide for the practical application of
amended Rule 26, and in particular for the “handling of anonymous com-
plaints” was duly noted during the adoption process. 142 In general, the in-
clusion of anonymous complaints remains consistent with the ICC Whistle-
blowing and Whistle-blower Protection Policy. 143
18.4.4. Conclusion
Having noted the significant positive developments in respect of the defini-
tion of principles of judicial ethics, a review of the disciplinary procedures
adopted at ICTs provides an ambivalent result.
Firstly, it is striking that there are only three such procedures, for a
total of six CoJEs actually adopted. The ECCC, the ICTY and the STL thus
remain(ed) without any proceedings attached to breaches of principles of
judicial ethics professed in their respective CoJEs – and a procedure was
only subsequently added in respect of the IRMCT.
Second, as far as the definition of disciplinary offences is concerned,
the level of details provided in the KSC and ICC procedures is to be com-
mended. In respect of the latter, the clear distinction between offences
committed in, and outside the course of official duties is a further positive
provide for the obligation to dismiss an anonymous complaint. However, given the obliga-
tion to include the identity of the complainant provided in Article 11(6)(a) IRMCT CoJE, it
is submitted that an anonymous complaint would have to be dismissed as unreceivable in
accordance with Article 12(1), Sentence 4 IRMCT CoJE, see above note 8.
140
Report ICC-ASP/17/30, para. 15, see above note 128.
141
Ibid.
142
Ibid., para. 24(c).
143
See ICC Whistle-blowing and Whistle-blower Protection Policy, 8 October 2014,
ICC/PRESD/G/2014/003 (https://www.legal-tools.org/doc/0c36ff/); Bergsmo, 2018, pp. 3–4,
see above note 2.

development, clearly demonstrating that the judicial office of a judge does

not stop at the doorstep of the courtroom but that some offences – even
where unrelated to actual judicial activities – are such that they would call
into question the overall capacity of an individual as a judge. This is a sig-
nificant positive development. As far as the IRMCT is concerned, one must
bear in mind the principle of nullum crimen sine lege – even though argua-
bly not directly applicable in situations of mere disciplinary offences. Be-
cause disciplinary procedures may lead to the significant sanction of re-
moval from office, it is critical that disciplinary offences be clearly defined
and, as noted above, it is certainly questionable whether the IRMCT CoJE
is sufficient in this respect.
Regarding the respective procedures, a number of positive develop-
ments are notable. At the IRMCT, the KSC and, since the most recent
amendment to its RPE, also at the ICC, the actual investigation into com-
plaints is made by judicial bodies not linked in any way to the judges of
each institution – whether they are actually external or entirely independent
from the judges. This is a significant step forward in guaranteeing the fair-
ness and transparency of the procedure. Allowing for anonymous com-
plaints in exceptional circumstances at the ICC is a further step towards
guaranteeing the accountability of the ICC in general and the judges in par-
ticular.
On the downside, as noted above, the disciplinary procedure at the
IRMCT is striking in terms of the broad discretion afforded to the IRMCT
President. Unfortunately, this discretion applied to such a wide range of
procedural steps does very little in ensuring the predictability and transpar-
ency of a procedure. By way of comparison, it is positive to note that the
discretion afforded to the KSC President and the ICC Presidency is signifi-
cantly more limited.
In addition, as a quite fundamental matter, it is perhaps unfortunate
that the actual body deciding upon the removal of a peer is – whether di-
rectly or indirectly – the Plenary, that is, the judges themselves. Whether
this will guarantee a fair and transparent procedure and decision-making, or
whether political considerations or personal preferences will have the upper
hand in such a vote, remains to be seen. The procedure in place in all three
instances certainly opens the door for the latter. On the other hand, the ar-
gument may readily be made that such an ‘internal’ procedure serves to
guarantee the independence of the judiciary.

Also, on the downside, one central issue when reviewing the disci-
plinary proceedings is the lack of accessible jurisprudence to analyse
whether and how the latter function in practice. It is noted that both the
KSC and IRMCT CoJEs include regulations to keep any proceedings in
relation thereto confidential as a matter of principle. Whilst public redacted
versions of some records are envisaged, 144 it is unclear which records are
concerned, how this will be handled in practice and it can thus far only be
noted that there are no such records available. As far as the ICC regime is
concerned, it does not provide for clear provisions regarding confidentiality.
Amended Rule 26(1) of the ICC RPE merely regulates that any complaint
shall remain confidential. How any other record will be handled is not fur-
ther specified – and here also, the lack of any accessible jurisprudence is
striking. 145
18.5. Final Remarks
The above analysis paints a mixed picture – whereby some clear conclu-
sions may be drawn, particularly on whether or not a culture of accounta-
bility is emerging for the judiciary in ICTs.
A review of the regulations and jurisprudence applied to motions for
disqualification determined that it is less than satisfactory in holding ac-
countable central participants in proceedings, namely the judges them-
selves. There was therefore a real necessity in putting systems of accounta-
bility into place– the first step of which was to further define the principles
applicable to judges, and to eventually attach disciplinary procedures and
sanctions to any violation thereof.
An analysis of the preambles and legal bases of various CoJEs re-
vealed that, in doing so, judges were notably mindful of their own solemn
undertakings as well as of UN or EU principles of judicial ethics. In a
unique manner, the STL CoJE expressly made the link with the process of
excusal and disqualification of judges, which demonstrates the close link
between this process and the principles of judicial ethics adopted in the Co-
JEs. It is striking that the ICC is the only institution which provides an ex-
plicit legal basis for the adoption of the CoJE. For all other ICTs, the actual
legal basis thereof remains unclear at best and would perhaps not withstand
144
IRMCT CoJE, Articles 14(6) and 15, see above note 8 and KSC CoJE, Article 23, see above
note 9.
145
Triffterer and Ambos, 2016, para. 10, see above note 43.

a – strictly hypothetical – legal challenge. As noted above, and with the

exception of the ICC, this also demonstrates that the push to adopt CoJEs
ultimately came from the judges themselves, rather than from those adopt-
ing their foundational documents – that is, the States creating these ICTs.
And this is perhaps where the most fundamental change of mind must oc-
cur: during the creation of such ICTs, mindful of the importance of judicial
ethics and, linked thereto, of a fair and transparent system of accountability,
States must put into place a solid legal basis for the adoption of such prin-
ciples and disciplinary procedures attached thereto.
A detailed review of the principles contained in the various CoJEs
showed an encouraging development: indeed, over time, various principles
experienced significant developments, both regarding the addition of new
principles as well as regarding the amount of details provided in respect of
established principles. The expansion of the principle of integrity is a flag-
ship in this respect. This significant progress is demonstrative of the fact
that judges, as those adopting the CoJEs, give significant thought to the
principles applied to them and to the manner in which they develop over
time. It further demonstrates an awareness amongst judges that the more
detailed these principles are set out, the more likely they are to foster re-
spect by parties and participants for the judges themselves and the work
performed by them. As noted above, this is a truly positive development.
The three procedures adopted in respect of CoJEs have been ana-
lysed in detail above. Significant progress has been made in this respect –
not least through the actual inclusion of such procedures, but also through
some clear definitions of disciplinary offences and the introduction of in-
dependent investigatory mechanisms. However, the significant discretion
afforded to the President in some cases, as well as the fact that it is ulti-
mately the judges who vote upon a removal from office is unfortunate as it
calls into question the fairness and transparency of such a procedure. Ulti-
mately, however, the lack of accessible jurisprudence remains a significant
obstacle in the analysis of the efficiency of disciplinary proceedings in fur-
thering the integrity of judicial proceedings.
Overall, however, the adoption of CoJEs as well as the disciplinary
proceedings in place represent a significant step forward in creating a cul-
ture of accountability for judges in ICTs. The various issues highlighted
above still require some resolution – however, it is undoubtable that such
CoJEs per se constitute effective institutional measures to give proper ef-
fect to the ‘integrity standard’. As with any novel feature of ICTs, there is a

clear need for improvement in respect of a range of matters. What remains

to be noted, however, is that a culture is emerging whereby judges of ICTs
are becoming increasingly aware of the necessity of being subjected to eth-
ical rules and regulations – as any staff member in ICTs, and as any judge
in domestic jurisdictions, for that matter.
Recent declarations by judges themselves are demonstrative of this
awareness. Most notably, Article 27 of the Paris Declaration on the Effec-
tiveness of International Criminal Justice, adopted in October 2017 by rep-
resentatives of various ICTs (the ICC, the STL, the IRMCT, the KSC) in-
cludes the following recommendation:
Establish suitable disciplinary mechanisms in order to ensure
that adopted codes of conduct are respected and to guarantee
impartiality, the appearance of impartiality and the dignity of
the disciplinary process. As far as possible use investigative
bodies which are external to the relevant court or tribunal and
entrust decision making to a separate panel of the Assembly of
the Judges of the court or tribunal. Consideration could be
given to establishing an investigative and decision-making
body common to all international criminal courts and tribu-
nals. 146
In a similar vein, the recent Oslo Recommendations for Enhancing
the Legitimacy of International Courts, finalised in July 2018 by represent-
atives of various ICTs (the ECCC, the STL, the Special Criminal Court in
the Central African Republic, the IRMCT, the ICC, the KSC) and interna-
tional courts (inter alia, the International Court of Justice, the World Trade
Organization Appellate Body, the International Tribunal for the Law of the
Sea, the European Court of Human Rights, the African Court on Human
and Peoples’ Rights), included the following recommendations regarding
“Ethics and Judicial Integrity”:
• Each international court should have a code of judicial ethics whose
provisions are well known to judges.
• Judges should behave in a manner that does not cast doubt upon their
independence, integrity, and impartiality.
• In situations where serious ethics violations by a judge are alleged and
require an investigation, consideration should be given to the appoint-
146
Paris Declaration on the Effectiveness of International Criminal Justice, 16 October 2017,
p. 4 (https://www.legal-tools.org/doc/ow1amx/).

ment of an external committee, provided the institution allows such a

procedure, composed of individuals with relevant knowledge and ex-
perience, to conduct the investigation and make recommendations. 147
Each of the above demonstrate a further evolution in the reflection of
judges, and ultimately further progress vis-à-vis the current CoJEs. Most
notably, this concerns the appointment of external committees to conduct
investigations and make recommendations on potential ethics violations, as
recommended in the Oslo Recommendations. The Paris Declaration is
perhaps even more progressive, in that it recommends that consideration be
given to establishing an investigative and a decision-making body common
to all criminal courts and tribunals, thus guaranteeing further independence
of such a body, not only at the investigative but also the decision-making
stage. Whether any of these recommendations will be adopted in practice
remains to be seen. In any case, it is a distinct – and encouraging – sign to
the States adopting ICT Statutes that judges are aware of the necessity for
strong ethical frameworks for their judicial activities.
147
Oslo Recommendations for Enhancing the Legitimacy of International Courts, 26 July 2018,
p. 2 (https://www.legal-tools.org/doc/4g0kcc/).

19
______
Reflections on Integrity in
International Criminal Justice and
Regional Human Rights Courts
Erik Møse *
19.1. Introduction
For this volume I would like to provide some reflections on integrity chal-
lenges facing international criminal courts and regional human rights courts.
This may seem surprising at first sight, as the two groups of courts seem-
ingly perform different tasks: criminal courts decide whether to convict or
acquit individuals after trials, whereas human rights institutions establish
State responsibility based on complaint procedures and examination of re-
ports from States. Moreover, each group includes courts with different
characteristics. In the criminal sphere, the two ad hoc tribunals set up in the
1990s to address the atrocities in the former Yugoslavia and Rwanda (‘IC-
TY’ and ‘ICTR’, respectively) in many ways differed from the hybrid
courts set up from 2002 with respect to Sierra Leone, Cambodia and Leba-
non (‘SCSL’, ‘ECCC’ and ‘STL’, respectively). The International Criminal
Court (‘ICC’), established by the Rome Statute in 1998, 1 is unique, as it is
the only permanent international criminal court. Turning to the three re-
gional courts in the human rights field – the European Court of Human
Rights, the Inter-American Court of Human Rights, and the African Court
of Human and Peoples’ Rights – they have different structures and their
powers are not identical.
This said, these courts certainly have common features. They are in-
ternational; they intervene because of alleged deficiencies at the national
level; their aim is to reduce the occurrence of human rights abuses; and
they frequently find themselves in the public spotlight, facing more or less
*
Erik Møse is Judge of the Supreme Court of Norway. He was previously Judge of the Euro-
pean Court of Human Rights, and President of the International Criminal Tribunal for
Rwanda.
1
doc/7b9af9/).

well-founded criticism. Consequently, it is not without interest to reflect on

common integrity challenges facing international criminal courts and hu-
man rights courts. The main focus of this chapter is on the two institutions
where I have personal experience – the ICTR in Arusha and the European
Court of Human Rights in Strasbourg.
19.2. General Remarks
Human rights courts and international criminal courts were set up to ad-
dress human rights violations and even large-scale abuses at the national
level. It is therefore difficult to argue against their existence. They represent
values above discussion. Very few would openly object to the principles
underpinning the European Convention on Human Rights (‘ECHR’) – hu-
man rights, the rule of law, and democracy. 2 Similarly, it is difficult not to
be in favour of justice and the fight against impunity for serious interna-
tional crimes, which were the main reasons behind the creation of interna-
tional criminal courts. 3
Criticism therefore usually concentrates on the functioning of these
institutions. For instance, it is argued that human rights and criminal courts
are costly, inefficient or unfair. When the focus is on the courts’ work, ra-
ther than on their existence, they become more vulnerable. There are sever-
al reasons for this.
First, these international institutions are relatively new institutions.
The first criminal courts – the ICTY and the ICTR – were established in
1993 4 and 1994 respectively, and the ICC commenced its work in 2002,
after the entry into force of the Rome Statute. The human rights court in
Strasbourg in principle started its activities from 1959, but received few
cases in the 1960s and the 1970s. By comparison, many national courts
have existed for much longer, some of them for centuries. Few observers
2
These principles are reflected in the Preamble of the ECHR, 4 November 1950
(https://www.legal-tools.org/doc/8267cb) and in Articles 1–3 of the Statute of the Council of
Europe, 5 May 1949, and have frequently been confirmed in the case-law of the European
Court of Human Rights.
3
See, for instance, the preamble of Security Council Resolution 955 (1994) on the Establish-
ment of an International Tribunal and adoption of the Statute of the Tribunal, UN Doc.
S/RES/955 (1994), 8 November 1994 (http://www.legal-tools.org/doc/f5ef47/).
4
Security Council Resolution 827 (1993) on Establishment of the International Tribunal for
Prosecution of Persons Responsible for Serious Violations of International Humanitarian
Law Committed in the Territory of the Former Yugoslavia since 1991, UN Doc. S/RES/827
(1993), 25 May 1993 (https://www.legal-tools.org/doc/b4f63b).

19. Reflections on Integrity in
International Criminal Justice and Regional Human Rights Courts
question their institutional legitimacy, even if opinions may differ on indi-

vidual judgments.
Second, the composition of international courts reflects different le-
gal traditions and national cultures, concerning both judges and staff. Even
though their work takes place within the framework of statutory provisions,
rules of procedure and case-law, there will be room for discretion. Some
national observers may not trust that these courts will conclude with the
‘right’ result in sensitive cases where perceptions may vary according to
geographical origin. The situation is different with respect to a national
court where the judges have been educated and have gained experience
within a society based on one legal tradition.
A third common feature, linked to the previous one, is distance. With
the exception of the hybrid courts in Sierra Leone and Cambodia, most in-
ternational courts work outside the country where the atrocities or other
human rights violations took place. For instance, the ICTR’s headquarters
were placed in Arusha, Tanzania due to shortage of suitable premises in
Kigali, the capital of Rwanda, because of appearances of justice and fair-
ness, and as a consequence of security risks in bringing the leaders of the
former regime into Rwanda if they were to be prosecuted there. 5 The ICC
in The Hague, with cases potentially coming from the entire world and
more than 120 States Parties, obviously needed one permanent seat. The
European Court of Human Rights, with currently 47 States Parties, was
placed in Strasbourg, a town with historical links to France and Germany.
When an international court considers cases relating to States where it is
not located, this may create a feeling of remoteness within the population
of the country concerned. It also leads to difficulties of communication for
the court, as it becomes more challenging to convince the inhabitants of
that State that the proceedings are relevant to them. Outreach programmes
and other information measures are essential but may not eliminate their
feeling of distance.
In addition to these three aspects of reticence, there is a fourth factor:
unrealistic expectations. After large-scale atrocities, there will be a cry for
justice from victims and public opinion. However, as the number of perpe-
5
Security Council Resolution 977 (1995) on the Decision to Designate Arusha as the Seat of
the ICTR, UN Doc. S/RES/977 (1995), 22 February 1995 (https://www.legal-tools.org/doc/
396c27). See also: Report of the Secretary-General Pursuant to Paragraph 5 of Security
Council Resolution 955 (1994), UN doc. S/1995/134, 13 February 1994 (https://www.legal-
tools.org/doc/b38d44d).

trators will normally be high, the international criminal courts cannot pos-
sibly deal with all of them, but have to focus on the leaders. This may lead
some observers to believe that the process is selective. In addition, the vol-
ume and complexity of cases dealing with international crimes slow down
the trials, again creating disappointment. Similarly, the Strasbourg Court is
considered by many applicants in Europe their only beacon of hope; they
have – rightly or wrongly – no confidence that their national authorities,
including the judiciaries, will redress human rights violations. Nonetheless,
because of the Court’s large workload, the process usually takes years,
which may lead to impatience and disappointment.
These four general characteristics are among the reasons why inter-
national courts are under scrutiny by several groups. In addition, States
Parties contributing to the institutions’ big budgets want value for their
money. Meanwhile, the slow progress of international criminal courts leads
to what has often been referred to as ‘tribunal fatigue’. 6 Some countries
may have a specific interest in the outcome, for instance, Rwanda with re-
spect to the ICTR, and the respondent State in Strasbourg. In the courtroom,
not only will the parties in criminal cases (the prosecution and the defence)
and in human rights proceedings (the applicant and the respondent State)
follow the bench closely, but witnesses or victims will also notice mistakes
or weaknesses. More generally, the media, non-governmental organizations,
academic observers, and the world community at large attach importance to
the international courts’ performance.
It is therefore essential that there be no doubt about the legitimacy of
an international court. Its credibility depends on the performance of the
many individuals working inside each institution – judges as well as staff.
Institutional legitimacy requires individual integrity.
19.3. Inefficiency
In conformity with the overall focus of this anthology, this contribution fo-
cuses on personal integrity. This said, there is no watertight division be-
tween the institutional legitimacy of an institution and the performance of
its employees. Their daily activities should be in conformity with the aims
6
This term has even found its way into the literature: see, for instance, Roger P. Alford, “The
Proliferation of International Courts and Tribunals: International Adjudication in Ascend-
ance”, in Proceedings of the Annual Meeting (American Society of International Law), 2000,
vol. 94, pp. 160–165.

of a well-functioning institution. For this reason, there is a need for a com-

mon ‘insider culture’. A good illustration is efficiency.
Starting with the international criminal courts, it is a recurring criti-
cism that they are slow or even inefficient. The criticism against the ICTR
in the first years of its existence is a good illustration. First, it took some
time before the trials could start. Only after the arrest of the first accused
person in May 1996, a considerable period after the Security Council Reso-
lution of November 1994, was it possible to start the trials, leading to the
first judgment in September 1998. 7 Second, the overall strategy changed.
Originally, the Prosecutor’s plan was to conduct one single trial with 29
accused persons. 8 However, the Tribunal then decided to have many single-
defendant and some multi-defendant trials. This was the right decision, but
required adjustments and caused delays.
More generally, reforms were necessary to improve the Tribunal’s
overall efficiency. Many lessons were learned on how to handle complex
international trials and acquire sufficient institutional knowledge. The tri-
partite structure – the Prosecution, the Registry and the Chambers – com-
plicated the situation. Gradually, the leadership in the three branches joined
forces to solve problems in a concrete and practical way through increased
co-ordination, consultation and co-operation.
Structural reforms were also necessary. Given the Tribunal’s huge
workload, the number of judges was first increased from six to nine in
1999; then gradually to 18 from 2003, through the possibility of appointing
up to nine ad litem judges for specific cases. 9 The number of courtrooms
increased from two to four, facilitating the hearing of several trials in paral-
lel.
As a result of the need to adopt such measures, it took time to
demonstrate visible results of efficiency reforms and thereby increase out-
7
ICTR, The Prosecutor v. Jean-Paul Akayesu, Trial Chamber I, Judgement, 2 September
1998, ICTR-96-4-T (https://www.legal-tools.org/doc/b8d7bd).
8
See ICTR, The Prosecutor v. Théoneste Bagasora and 28 others, ICTR-98-37. On 31 March
1998, the indictment was dismissed by Judge Khan; on 8 June 1998 (ICTR-98-37-I), the
Prosecutor’s appeal was dismissed by the Appeals Chamber (ICTR-98-37-A).
9
Security Council Resolution 1165 (1998) on the Establishment of a 3rd Trial Chamber of the
International Tribunal for Rwanda, UN Doc. S/RES/1165 (1998), 30 April 1998 (https://
www.legal-tools.org/doc/08eb7a); Security Council Resolution 1512 (2003) on the Amend-
ment of articles 11 and 12 quarter of the Statute of the International Criminal Tribunal for
Rwanda, UN Doc. S/RES/1512 (2003), 27 October 2003 (https://www.legal-tools.org/doc/
47fcbe).

side observers’ confidence in the newly established ICTR. The experience

from other criminal courts reveals a similar pattern. There is considerable
wisdom in the German expression ‘Aller Anfang ist schwer’ (‘All begin-
nings are difficult’) – also for international courts.
For the Court in Strasbourg, which gradually started its work in the
1960s, the main challenge after the 1990s has rather been to maintain the
confidence of observers. Following the fall of the Berlin Wall and the en-
largement of the Council of Europe to include the previous communist
countries, the number of States Parties to the ECHR rose to 47. Conse-
quently, the number of new applications increased steadily and in 2011
reached around 160,000 pending cases. Many of them were ‘repetitive ap-
plications’ against the same States, demonstrating systemic domestic prob-
lems that had not been adequately addressed by those States, in spite of the
Court’s previous judgments establishing violations. Even if the Court was
not to blame for this backlog, there were recurring discussions about its
efficiency and future, leading to expressions that it was ‘drowning’ or ‘a
victim of its own success’. This represented a serious challenge to the
Court’s legitimacy and led to far-reaching proposals for an overall reform
of the supervisory system established by the ECHR. 10
Following in-depth studies and ministerial conferences, the Council
of Europe introduced several reforms, the most important one being the
adoption of Protocol 14 to the ECHR. 11 In particular, this protocol allowed
a single judge to declare an application inadmissible when it had no pro-
spect of success. This rapidly led to a significant reduction of the backlog.
The protocol also increased the Court’s efficiency by giving a committee of
three judges – not only a chamber of seven – the power to render unani-
mous judgments based on well-established case-law. During the last few
years, the number of pending applications has varied between 50,000 and
60,000. 12 This reduction of the backlog, amounting to almost 100,000 cases,
visibly demonstrated that there was no basis for any criticism to the effect
that the Court as an institution and its employees were inefficient. Conse-
10
European Court of Human Rights, “Interlaken Declaration”, 19 February 2010; European
Court of Human Rights, “Izmir Declaration”, 27 April 2011; as well as several follow-up
proposals within the Council of Europe.
11
Council of Europe, Protocol No. 14 to the European Convention on Human Rights, 13 May
2004 (https://www.legal-tools.org/doc/dd5017).
12
For an overview over up-to-date statistics regarding current pending cases by the European
Court of Human Rights, see “Statistics” (available on its web site).

quently, the plans for an overall reform of the ECHR’s supervisory system
were not followed up. Recent ministerial conferences have instead focused
on the need to strengthen the existing court system and on the principle of
subsidiarity. 13 Last but not least, the Court has constantly tried to stream-
line its internal working methods in order to increase its judicial output.
19.4. Personal Integrity – Some Illustrations
Criticism relating to the personal integrity of individuals working in inter-
national courts may cover quite different situations. It is my impression that
allegations of mismanagement, or even corruption or other illegal acts, are
rare. Should such criticism occur, it is important that the institution carry
out thorough investigations, even if the person accused of such behaviour
has left, in order to clarify whether the allegation has any factual basis and,
if so, to take necessary measures and demonstrate a rupture with the past.
I cannot recall any relevant illustrations from Strasbourg. In Arusha,
there was, in the early years, serious operational deficiencies, in particular
in the Registry. This resulted in administrative improvements from 1997.
Subsequently, there were occasionally other allegations, for instance, about
unsatisfactory witness protection if a witness had been assaulted after re-
turning to Rwanda subsequent to his testimony. Such assertions were al-
ways subject to thorough investigations, leading to the finding that there
was no basis for criticism against the Tribunal.
A more common form of criticism relates to what could generally be
called questionable behaviour in connection with the judicial proceedings.
This may take different forms. Below follow a few examples.
Starting with the behaviour in the courtroom, criticism against the
Strasbourg proceedings are extremely rare. The hearings normally last only
two to three hours and consist of oral pleadings (about 45 minutes from
each party), brief questions from the judges, and responses.
The situation is more complicated in international criminal courts
with trials lasting for up to hundreds of days, covering a variety of situa-
tions. For instance, the cross-examination of witnesses who are also vic-
tims of grave crimes presents challenges to lawyers testing their credibility
13
See, to some extent, European Court of Human Rights, “Brighton Declaration”, 20 April
2020, and more clearly “Brussels Declaration”, 27 March 2015, and “Copenhagen Declara-
tion”, 13 April 2018.

even if they will normally take into account that such witnesses are vulner-
able.
In all court settings, it is essential that judges’ questions not be per-
ceived as biased, as this may easily lead to doubts about the legitimacy of
the institution. Needless to say, this does not in any way limit a judge’s in-
dependence or freedom of expression. There are many ways to formulate a
question.
A point of particular relevance to international criminal trials is that
the judges must avoid unnecessary use of time in the courtroom; otherwise
their court will be perceived as inefficient (see Section 19.2 above). It is
necessary to find the right balance between efficient and fair proceedings,
for instance, when the parties ask for more time. There are examples of
what some observers would characterize as an unnecessary consumption of
time, both with respect to the taking of evidence and during discussions of
procedural issues.
Another illustration, which is relevant to both groups of international
courts, relates to the use of separate opinions (concurring or dissenting).
While national systems differ on the acceptance of such opinions, most in-
ternational courts allow them, either explicitly or by implication. There is
no doubt that such opinions may be necessary and useful, and it goes with-
out saying that their use does not in itself raise any risk to the legitimacy of
a court. However, if some judges resort to this possibility too frequently, or
if a separate opinion is quite lengthy (perhaps even longer than the majority
judgment), there is a risk that the message of the court’s judgments become
less clear and leave observers with the impression that the court is more
divided than it really is. Lengthy opinions also require considerable re-
sources (for example, translation and checking of footnotes) and may even
slow down the delivery of the judgment. Finally, it may be worth recalling
that separate opinions should be drafted in a way that is respectful to the
view of the majority. 14
Integrity issues may also arise in connection with the daily manage-
ment outside the context of the judicial proceedings. A recurring theme has
been to what extent a judge may be absent from the court in order to carry
out extra-judicial activities. Over the years, the general policy has general-
ly become stricter. The question now arises with respect to teaching or at-
tending conferences. As will be seen below (fourth and fifth remarks under
14
See also Section 19.5. below, text accompanying notes 21 et seq.

Section 19.5.), current internal codes and international guidelines provide

that such tasks must not reduce the efficiency of the court. One example is
the guidelines for judges’ teaching activities, adopted by the Strasbourg
Court’s bureau in 2011. 15 In principle, teaching shall take place during pe-
riods of ‘light schedule’ (periods when there are no hearings). Otherwise, it
is only acceptable outside normal working hours, which in practice means
in the evenings, during weekends and vacations.
This said, conferences provide an opportunity for judges to offer bal-
anced information about their court’s functioning and thereby respond to
unfounded criticism which may affect the institution’s legitimacy. It is
therefore necessary to find the right balance between this task and their dai-
ly workload, which is heavy.
In the same vein, it is important for a court, through its leadership or
its information office, to provide correct information. For instance, some
observers of the ICTR argued that those accused of genocide lived in privi-
leged conditions during pre-trial detention in Arusha, referring to the Tri-
bunal’s local prison as ‘Arusha Hilton’. In fact, it was quite spartan, far
from luxurious, but better than many African prisons because it complied
with international standards and was inspected regularly by an independent
non-governmental organization. The Tribunal decided to invite a group of
journalists into the prison to observe the conditions, and the criticism ended.
Another example relates to the legal officers that assist judges in
criminal and human rights courts with legal research and drafting. Occa-
sionally, there may be rumours that they also decide the outcome of the
cases. Such stories are baseless; the judges are in total control and do not
hesitate to change drafts. Similarly, during my time in the Strasbourg Court,
I heard national speculations that judgments based on a ‘dynamic’ or ‘evo-
lutive’ interpretation were the result of Registry lawyers with an agenda. I
never experienced anything of that sort. For integrity reasons, it is im-
portant to refute this kind of rumours and explain how the institution func-
tions.
19.5. The Way Forward
The aim of this anthology is to revisit a wealth of issues relating to integri-
ty in international justice, as the six parts address the topic from different
15
Guidelines for “Judges’ teaching activities”, adopted by the European Court of Human
Rights’ Bureau on 5 October 2011.

perspectives. Below follow six general remarks regarding integrity in in-

ternational justice, starting with the statutory texts of international courts.
The word ‘integrity’ does not appear in all statutes as rightly recalled
by the policy brief from which this project originated. 16 For instance, Arti-
cle 21(1) and (3) of the ECHR, on the criteria for office, simply provides
that the judges shall be of “high moral character” and that they “shall not
engage in any activity which is incompatible with their independence, im-
partiality or with the demands of a full-time office”. On the other hand, Ar-
ticle 12 of the ICTR Statute about qualifications and election of judges
states that the judges shall be persons of “high moral character, impartiality
and integrity”. According to its Article 15(1) about the Prosecutor, he or
she shall be of “high moral character” and possess “the highest level of
competence and experience” with the investigations and prosecutions of
criminal cases.
Of these texts, only one refers to integrity. Both statutes focus on the
judges, whereas the ICTR Statute includes the Prosecutor. They do not
mention any other professional groups. Other court statutes provide a simi-
lar picture.
In my view, it is difficult to see a need to revise the statutory texts,
for instance, by inserting the word ‘integrity’ or by providing that this re-
quirement applies to all professional groups working in the institution. A
revision process would be lengthy and require negotiations and agreement
by all States Parties. It could create the incorrect impression that integrity
issues are a general problem in international courts. Furthermore, it is open
to doubt whether such amendments would make a significant difference in
the daily life of the courts.
Second, the rules of procedure of human rights and criminal courts
contain very few provisions of relevance to integrity. This is not surprising,
as they focus on the procedural aspects of the judicial proceedings. In most
courts, the rules are adopted by the plenary of the judges and hence easier
to amend than statutory texts. However, whether there is a need for reform
will ultimately depend on the situation of each court. Given the technical
character of the rules of procedure, supplementing them with provisions on
integrity may not be the best way forward.
16
tools.org/doc/e550f7/).

Third, of greater interest are the internal codes of conduct. In the

criminal field, it is worth noting that, already in 2005, the judges of the ICC
adopted a Code of Judicial Ethics for judges, which contains provisions on
judicial independence, impartiality, integrity, confidentiality, diligence,
conduct during proceedings, public expression and association, and extra-
judicial activities. 17 There is also an extensive Code of Conduct for the Of-
fice of the Prosecutor from 2013. 18
In 2018, the judges of the International Residual Mechanism for In-
ternational Criminal Tribunals, which succeeded the ICTY and the ICTR,
adopted a code of professional conduct. 19 Its governing principles include
similar provisions as the ICC code for judges and provides for a complaint
procedure. Its Article 3 about integrity provides that judges “shall conduct
themselves with probity and integrity, thereby enhancing public confidence
in the judiciary”. They shall not accept or offer gifts, shall treat others with
respect and not engage in discrimination, harassment or abuse of authority.
Turning to the human rights field, the Strasbourg Court adopted a
resolution on judicial ethics in 2008. 20 It contains provisions on many is-
sues, for instance, independence, impartiality, integrity, diligence and com-
petence, discretion, freedom of expression, and additional activities. Prin-
ciple III on integrity states that judges’ conduct must be consistent with the
high moral character that is a criterion for judicial office, and that they
should be mindful at all times of their duty to uphold the standing and
reputation of the Court.
These internal codes of conduct all use the word ‘integrity’, define
the concept and regulate important situations. It is true that some provi-
sions are formulated in a general way, but in their totality, they provide im-
17
ICC, Code of Judicial Ethics, 2 January 2005, ICC-BD/02-01-05 (https://www.legal-
18
ICC, Code of Conduct for the Office of the Prosecutor, entry into force 5 September 2013
(https://www.legal-tools.org/doc/3e11eb). It includes, inter alia, provisions on general
standards, independence, honourable conduct, faithful conduct, conscientious conduct, im-
partiality, confidentiality, public expression and association, conflict of interest, and non-
acceptance of gifts.
19
International Residual Mechanism for Criminal Tribunals, Code of Professional Conduct of
the Judges of the Mechanism, MICT/14/Rev.1, 9 April 2018, (https://www.legal-tools.org/
doc/23cc92 (MICT/14)).
20
European Court of Human Rights, Resolution on Judicial Ethics, adopted by the Plenary
Court on 23 June 2008.

portant guidance. The question remains whether there should be similar

guidelines also for other members of international courts than the judges.
Fourth, discussions of integrity should also take into account interna-
tional guidelines. In 2004, the International Law Association adopted the
Burgh House Principles on the independence of the judiciary. 21 The 17
principles focus on independence and impartiality, are generally formulated,
and take into account that each international court has its own characteris-
tics and functions. In the present context, it is worth noting that Principle 2
makes specific reference to the need to choose judges “of high moral char-
acter, integrity and conscientiousness”. The other provisions regulate a
wide variety of issues linked to the legitimacy and effectiveness of the in-
ternational judicial process. 22
Of interest is also the resolution adopted in 2011 by the Institut de
Droit international, which deals with the position of international judges. 23
One of its aims was to promote the authority and effectiveness of interna-
tional justice. Article 2 highlights the importance of “the intellectual and
moral character” of the judges in international courts. The resolution con-
tains seven articles. 24
In 2018, during a conference with the participation of judges from in-
ternational courts, the Oslo Recommendations for enhancing the legitimacy
of international courts was adopted by the participants of the Brandeis In-
stitute for International Judges. 25 While emphasizing that the primary work
21
The Study Group of the International Law Association on the Practice and Procedure of
International Courts and Tribunals in association with the Project on International Courts
and Tribunals, “The Burgh House Principles on the Independence of the International Judi-
ciary”, 2004 (available on International Law Association’s web site).
22
The 17 principles deal with independence and freedom from interference; nomination, elec-
tion and appointment; security of tenure; service and remuneration; privileges and immuni-
ties; budget; freedom of expression and association; extra-judicial activity; past links to a
case or to a party; interest in the outcome of a case; contacts with a party; post-service limi-
tation; disclosure; waiver, withdrawal or disqualification; and misconduct.
23
Institut de Droit international, Sixth Commission, “The Position of the International Judge”,
adopted on 9 September 2011.
24
The seven articles give guidance concerning selection of judges; term of judicial functions;
status of judges; remuneration and conditions of service; organization of international courts
and tribunals (with emphasis on independence); immunities and privileges; and international
part-time judges.
25
The “Oslo Recommendation for Enhancing the Legitimacy of International Courts”, 26
September 2018 (https://www.legal-tools.org/doc/4g0kcc/), was drafted collectively on 2
June and finalised on 26 July 2018 by the participants of the Brandeis Institute for Interna-

of judges is to produce well-reasoned and timely judgments, the recom-

mendation also recognizes that ensuring the legitimacy of international
courts may still require more from both judges and their institutions.
The recommendation contains five parts. 26 Section B deals specifi-
cally with ethics and judicial integrity. It recommends that each interna-
tional court should have a code of judicial ethics; that judges should behave
in a manner that does not cast doubt upon their “independence, integrity,
and impartiality”; and that dissenting or separate opinions should be deliv-
ered “with restraint and formulated in respectful language so as not to un-
dermine the authority of the court”.
Section E states that, in view of the complex and shifting global con-
text, courts must increasingly pay attention to communicating their deci-
sions, tasks and responsibility. It further recommends that judges should
endeavour to promote the tasks and functioning of their courts by explain-
ing their work to the public, although the primary responsibility rests with
the courts’ presidents and communication departments.
Fifth, it follows from this overview that several texts regulate integri-
ty issues of relevance to international judges, whereas there is less material
concerning prosecutors and members of the courts’ registries. It would ap-
pear that the best way forward is not to elaborate new general texts for
judges, but rather to adopt a specific approach. Each court should, in light
of its particular situation, reflect on whether there is a need to improve in
certain areas and try to foster a common culture within the institution.
Sixth, international courts need senior officials with a highly profes-
sional approach, based on the fulfilment of duty, as has been rightly high-
lighted. 27 It is therefore important that the process of election of judges and
other key officials ensure that the best candidates be selected.
At the national level, candidates for the highest posts in the judiciary
have previously worked in other positions and are known in legal circles.
tional Judges. The conference (30 May to 2 June 2018) was organized by the International
Center for Ethics, Justice and Public Life (Brandeis University) and the PluriCourts Centre
for the Study of the Legitimate Roles of the Judiciary in the Global Order (Faculty of Law,
University of Oslo).
26
The five sections (A to E) cover the following topics: nomination and selection of interna-
tional judges; ethics and judicial integrity; efficiency of proceedings; transparency of pro-
ceedings and access to judicial output; and role of judges in outreach and interactions with
the public.
27

This facilitates the appointment procedure and reduces the risk of surprises.
In international elections, however, the candidates are usually unknown to
those electing them. It is therefore advisable to ensure transparency of elec-
tions of international judges and other high officials.
One interesting example is the European Court of Human Rights’
election process. Each State Party nominates three candidates, and the Par-
liamentary Assembly of the Council of Europe elects one of them in re-
spect of the State concerned. The Assembly has adopted several recom-
mendations to improve the election process, the underlying approach being
that the national selection should be “rigorous, fair and transparent in order
to enhance the quality, efficacy and authority of the Court”. 28 In particular,
the national application procedure, both the announcement and the final
recommendation, should be as transparent as possible. Moreover, the As-
sembly’s election process, which includes interviews with the candidates,
has been improved in many ways.
The Committee of Ministers also established a committee with the
task to scrutinize the curricula vitae of the nominated candidates and give
advice before the three names are transmitted to the Assembly. 29 The com-
mittee has seven members with judicial experience. It has influenced the
nomination process in some countries.
19.6. Final Remarks
Criticism against institutions is common both at the national and interna-
tional levels. It concerns various entities: legislative, judicial and adminis-
trative. This is not surprising but rather reflects that the institutions are rel-
evant, exercise power, and hence should be scrutinized. Criticism is a sign
of interest in their work and may lead to improvements. An institution that
adopts a defensive attitude and does not react to well-founded criticism
risks losing its legitimacy.
Gradually, the international judiciary has become subject to debate.
Even though criminal courts and human rights courts differ in many ways,
28
For the many resolutions by the Parliamentary Assembly about the election of the judges to
the Strasbourg Court, see generally: Parliamentary Assembly of the Council of Europe, Pro-
cedure for the election of judges to the European Court of Human rights as of 15th of April
2019, SG-AS (2020) 03 rev 3, 30 September 2020.
29
Council of Europe, CM/Res/(2010)26 on the establishment of an Advisory Panel of Experts
on Candidates for Election as Judge to the European Court of Human Rights, 10 November
2010.

both groups have been subject to criticism relating to institutional legitima-

cy and personal integrity. There is a need to respond to such challenges,
either by refuting unfounded allegations or through the adoption of
measures, for instance by carrying out investigations and reform. Over the
years, internal codes and international guidelines have identified integrity
issues and have recommended best practices. International courts have to
respond to criticism as a matter of priority and in a transparent way, thereby
dispelling any doubts about their legitimacy. More generally, there should
be a common culture of integrity within the institution.

20
______
Integrity and Independence in

the Delivery of Accountability:
Harnessing International and Domestic
Frameworks in Pursuit of Justice for ISIL Crimes
Karim A.A. Khan and Jonathan Agar *
[…] a prince’s court

is like a common fountain, whence should flow
Pure silver drops in general, but if ’t chance
Some curs’d example poison’t near the head,
Death and diseases through the whole land spread. 1
20.1. Introduction
‘Integrity’ is perhaps as often cited as it is too seldom considered in legal
discourse. It is for this reason that this anthology edited by Morten
Bergsmo and Viviane Dittrich is so welcome – and so sorely needed. The
word ‘integrity’, the concept and values that are embraced by it, are neither
throw-away lines, or redundant surplusage. Rather, without the integrity of
a criminal investigation, a legal process, or a lawyer, an investigator or oth-
er official engaged within it, due process is rendered a remote possibility.
*
Karim A.A. Khan QC, Assistant Secretary-General, is Special Adviser and Head of the UN
Investigative Team to promote Accountability for crimes committed by Da’esh/ISIL
(‘UNITAD’). As a barrister, he has been engaged as counsel for prosecution, victims or the
defence in cases before the ICC, the International Criminal Tribunal for the former Yugosla-
via (‘ICTY’), International Criminal Tribunal for Rwanda (‘ICTR’), Special Court for Sierra
Leone (‘SCSL’), Extraordinary Chambers in the Courts of Cambodia (‘ECCC’), the Special
Tribunal for Lebanon (‘STL’), and the European Union Rule of Law Mission in Kosovo
(‘EULEX’) court in Kosovo and the Special Panel for Serious Crimes in East Timor. He has
also worked as a legal adviser in the Office of the Prosecutor (‘OTP’) of both the ICTY &
ICTR and in the Crown Prosecution Service and the Law Commission of England and
Wales. Jonathan Agar is a Legal Officer in the Office of the Special Adviser, UNITAD.
Previously, he has held positions with the United Nations Office of Legal Affairs, the United
Nations Office on Drugs and Crime, and the United Kingdom Government Legal Service.
This article is written by the authors in their personal capacity and does not represent the
views of the United Nations.
1
John Webster, The Duchess of Malfi, Act 1, Scene 1.

Without integrity in all its various forms, the law and its processes are lia-
ble to be brought into disrepute. The consequence will be an erosion of
trust in the vital pillar of justice and her various institutions.
The quote from John Webster’s play that frames this chapter articu-
lates a reality that integrity and leadership must commence from those ‘at
the top’ and percolate down. It warns of the danger and consequences that
will arise when the leadership is tainted or seen as polluted. But, as this
chapter will also seek to demonstrate, it is also the case that integrity in the
investigation of crimes, in accountability mechanisms and in the adjudica-
tion of crimes, requires a self-sustaining ecosystem in which – simultane-
ously – all parts are imbued with the quality of ‘integrity’ and in which all
parts scrutinize and, thereby, reinforce or help ensure the integrity of each
other.
As the work and activities of international courts, mechanisms and
investigative teams come under increasing scrutiny, our adherence to these
principles is rendered even more essential. As the voices of those States
and other actors questioning the value and legitimacy of international ac-
tion with respect to criminal accountability grow louder, advocates of glob-
al action must not be impeded by concerns and criticisms regarding the
transparency and effectiveness of the existing international criminal justice
architecture.
The responsibility for placing these principles of independence, im-
partiality and integrity at the centre of the cause of international criminal
justice ultimately resides with those charged with leading relevant entities.
As intimated, a culture of integrity must start with the heads of mechanisms
both leading by example and empowering senior and mid-level manage-
ment to implement an effective normative and institutional integrity
framework. A culture of integrity should be developed that cascades down
from mission leadership in a manner that ensures coherence of delivery and
a common and sincere commitment by all team members, international and
national, to its adherence.
While the central importance of the principles of integrity and impar-
tiality to the delivery of justice remains constant, the mechanisms and poli-
cies introduced to implement these concepts must respond to the context in
which they seek to operate. The application of integrity frameworks within
international criminal justice mechanisms established in recent times will
necessarily address challenges sometimes similar and at other times differ-
ent to those encountered 20 years ago at the time of the adoption of the

20. Integrity and Independence in the Delivery of Accountability: Harnessing
International and Domestic Frameworks in Pursuit of Justice for ISIL Crimes
Rome Statute. The mandates and consequent integrity challenges faced by

such entities reflect the evolving political and diplomatic context.
Indeed, recent developments in the social and political environments
in many States have not only increased scrutiny of existing institutions, 2
but have also had a significant impact on the context in which new interna-
tional criminal justice entities are born. Increased emphasis has been placed,
in particular, on how the international community can promote and support
accountability in a manner that emphasizes co-operation and collaboration
with national authorities and full respect for national sovereignty and the
jurisdiction of States over crimes committed in their territories.
Such innovation of approach with respect to the promotion of crimi-
nal accountability is not just necessary but must be welcomed. It is essen-
tial that the international community is able to demonstrate an ability to
reflect changing political contexts in new additions to the international
criminal justice architecture. However, such changes also pose fundamental
questions concerning the issue of integrity. For example, how do we con-
tinue to effectively uphold the principles of integrity and independence of
international criminal justice mechanisms while ensuring that States are
able to strengthen their role as stakeholders in the process of justice, and
allow them to embrace and support the mandates of such entities? How can
we address the perceived tension between the principles of independence
and collaboration in a manner that maintains a viable – yet principled – po-
litical consensus for international action?
This chapter will reflect on some of the initial lessons to be drawn
from the work undertaken by the United Nations (‘UN’) Investigative
Team to Promote Accountability for Crimes Committed by Da’esh/ISIL
(‘UNITAD’) in constructing a normative, institutional and cultural system
of integrity within the framework of its mandate pursuant to the UN Secu-
rity Council resolution 2379 (2017). 3 Considering the engagement and co-
operation with national authorities, as well as the integration of a signifi-
cant national staffing component, the implementation of integrity measures
by UNITAD might provide an indicator as to how international criminal
2
Series No. 93 (2018), Torkel Opsahl Academic EPublisher, Brussels, 2018 (https://www.
legal-tools.org/doc/e550f7/).
3
United Nations Security Council (‘UNSC’), Resolution 2379 (2017), Threats to Internation-
al Peace and Security, UN Doc. S/RES/2379, 21 September 2017 (‘S/RES/2379’) (https://
www.legal-tools.org/doc/1510b4/).

justice entities can continue to adapt their integrity systems to their evolv-
ing mandates and operational imperatives.
With respect to the core normative framework, we will consider in
particular the interconnection and interaction between the broader frame-
work provided by the UN Charter, 4 the UN Staff Rules and Regulations, 5
and other system-level instruments, and the increasingly specialized integ-
rity architecture specific to the mandate and operational particularities of
UNITAD. Attention will be paid in this regard to how the concept of integ-
rity is addressed in the provisions of Security Council resolution 2379
(2017), the Terms of Reference regarding the activities of UNITAD in Iraq,
as approved by the Security Council on 13 February 2018, 6 as well as the
tailored integrity policies and practices implemented since the establish-
ment of the Team. Some of these are bespoke to UNITAD and some are
simply functions of established good practice that is essential to ensuring
the integrity of evidence. Chain of custody, a preference for the best evi-
dence, where available, proper interview protocols and interaction with
witnesses, and a degree of circumspection regarding hearsay without sup-
porting evidence, are all factors that are tried and tested – and recognizable
elements, in one form or another, in most legal systems.
Drawing on the experience gained since the commencement of the
activities of UNITAD in Baghdad in October 2018, consideration will be
given to three key aspects of its work which have engaged the concepts of
integrity, impartiality and independence. First, we will consider the indi-
vidual and personal level of integrity. We will reflect on how common con-
cepts of impartiality and independence can be instilled in all staff members
within an organization that draws not only on the talents of over 150 staff
4
Charter of the United Nations, 1 UNTS XVI, 24 October 1945, Articles 100 and 101 in par-
ticular (‘UN Charter’) (https://www.legal-tools.org/doc/6b3cd5/).
5
Most recently, see amendments introduced through UN General Assembly resolution, Hu-
man Resources Management, UN Doc. A/RES/72/254, 24 December 2017 (‘A/RES/72/254’)
(https://www.legal-tools.org/doc/cc7il5/), as promulgated by the Secretary-General through
Secretary-General’s Bulletin, UN Doc. ST/SGB/2018/1, effective from 1 January 2018
(https://www.legal-tools.org/doc/zn5lba/).
6
Terms of reference of the Investigative Team to support domestic efforts to hold Islamic
State in Iraq and the Levant (Da’esh) accountable for acts that may amount to war crimes,
crimes against humanity and genocide committed in Iraq, established pursuant to Security
Council resolution 2379 (2017), attached as Annex to Letter dated 9 February 2018 from the
Secretary-General addressed to the President of the Security Council, UN Doc. S/2018/118,
14 February 2018 (‘Terms of reference’) (https://www.legal-tools.org/doc/niw4cw/).

members from over 40 countries world-wide, but also seeks to integrate

and harness the talents of a significant number of national criminal law ex-
perts.
Second, the concept of integrity is assessed from the perspective of
those individuals with whom UNITAD has engaged as a core part of its
investigative activities, in particular witnesses, survivors and members of
impacted communities. Integrity measures are of particular importance
here in ensuring that the most vulnerable individuals, including victims of
sexual and gender-based violence, do not suffer double-victimization, ei-
ther through societal stigmatization connected through their suffering or
through reliving their experiences in a manner that is not aligned with best
practice.
Finally, we will consider integrity in relation to institutional inde-
pendence. This issue is of particular relevance in light of the specific em-
phasis within the mandate of UNITAD with respect to co-operation and
collaboration with national authorities, as well as its ultimate objective of
supporting the implementation of effective judicial proceedings at the na-
tional level.
As reflected below, we consider that the success of any international
criminal accountability mechanism, and in particular those established in
the current political and diplomatic context, will largely depend on the
recognition that the principles of integrity and co-operation, and of inde-
pendence and respect for sovereignty, do not represent competing interests
to be balanced but, may be viewed – perhaps more often than expected – as
mutually reinforcing pillars on which effective action is built. Our experi-
ence also underlines the often mutually reinforcing and complementary
nature of deontological and consequential approaches 7 to integrity. This
includes adherence to international standards and best practice in the fields
of, inter alia, information management and security, witness protection and
support, and evidence-collection as a precondition for effective investiga-
tive action capable of producing case-files on which national prosecutions
may be built.
7
See Alexander Heinze and Shannon Fyfe, “Prosecutorial Ethics and Preliminary Examina-
tions at the ICC”, in Morten Bergsmo and Carsten Stahn (eds.), Quality Control in Prelimi-
nary Examination: Volume 2, Torkel Opsahl Academic EPublisher, Brussels, 2018 (https://
www.legal-tools.org/doc/dff594/).

20.2. The Normative Integrity Framework for the Establishment of a

United Nations Criminal Accountability Mechanism
20.2.1. The Crimes of ISIL and a Response by the International
Community
In the current climate of increased scepticism regarding the value and legit-
imacy of collective action in the field of criminal justice, the international
community was confronted with some of the most severe, co-ordinated and
egregious atrocities in recent times. Between June 2014 and December
2017, ISIL captured, controlled and operated with impunity over large
swathes of territory in Iraq, committing grave abuses of international hu-
man rights law, international criminal law, and international humanitarian
law. The subsequent liberation of large areas from its control served to ex-
pose the magnitude of the crimes inflicted on the inhabitants of these terri-
tories. Witness testimony revealed a plethora of abuses including execu-
tions, torture, amputations, ethno-sectarian attacks, destruction and looting
of cultural heritage, and rape and sexual slavery imposed on women and
girls. Thousands of children became victims, witnesses and forced perpe-
trators of these atrocities. 8
As ISIL was driven from its strongholds in Iraq, and as territories
were wrestled from their control, the focus of victims and impacted com-
munities turned to the imperative of ensuring that senior ISIL members
were held accountable for the crimes they have committed, on the basis of
objective, evidence-based investigation and analysis. It was further recog-
nized, both by entities representing those groups most impacted by ISIL
crimes and by national governments and non-governmental agencies, that
the detailed and factual presentation of ISIL atrocities in fair and transpar-
ent criminal proceedings could serve to vindicate the requirements of jus-
tice and strengthen efforts to establish a basis for broader reconciliation in
Iraq. By exposing the extent and gravity of crimes committed, accountabil-
ity processes could also serve to undermine the ideological underpinnings
8
See Report of the Office of the United Nations High Commission for Human Rights on the
human rights situation in Iraq in the light of abuses committed by the so-called Islamic State
in Iraq and the Levant and associated groups, UN Doc. A/HRC/28/18, 13 March 2015
(https://www.legal-tools.org/doc/8a4f0d/), and “They came to destroy”: ISIL Crimes Against
the Yazidis, Report of the Independent International Commission of Inquiry on the Syrian
Arab Republic, UN Doc. A/HRC/32/CRP.2, 15 June 2016 (https://www.legal-tools.org/doc/
24962f/).

of their movement, thereby reducing the ability of its form of violent ex-
tremism to spread further.
In the initial conceptual discussions amongst States on the establish-
ment of a potential international mechanism addressing ISIL crimes, em-
phasis was placed on the need for any international action to be based on
the principle of respect for national jurisdiction, as well as effective co-
operation and co-ordination with relevant national authorities. At the same
time, many States and other actors emphasized the need for the future
mechanism to be able to act independently and impartially so as to ensure
the integrity of its work as well as strengthen the admissibility of eviden-
tiary material collected before national courts, both in Iraq and other States.
From the outset, the Team’s work has been bound to these dual imperatives
of respect for national sovereignty and the principle of independence,
which were viewed as central to its ability to conduct its work effectively
and in a manner ensuring that evidence collected could serve as an effec-
tive basis for domestic prosecutions.
It is in this context that the Government of Iraq, on 9 August 2017,
formally requested the assistance of the international community in making
sure that members of ISIL are held accountable for their crimes in Iraq, in-
cluding where those may amount to crimes against humanity, war crimes,
or genocide. Following extensive negotiations led by the United Kingdom
as penholder, the Security Council responded with one voice, unanimously
adopting resolution 2379 (2017). 9 It requested the Secretary-General to es-
tablish an Investigative Team, headed by a Special Adviser, “to support
domestic efforts to hold ISIL accountable by collecting, preserving, and
storing evidence in Iraq of acts that may amount to war crimes, crimes
against humanity, and genocide committed by the terrorist group ISIL in
Iraq”. 10 In addition to this core investigative mandate, paragraph 3 of this
resolution provides that the Special Adviser, while avoiding duplication of
effort with other relevant UN bodies, will also promote throughout the
world, accountability for acts that may amount to war crimes, crimes
against humanity, or genocide committed by ISIL, and work with survivors,
in a manner consistent with relevant national laws, to ensure their interests
in achieving accountability for ISIL are fully recognized.
9
S/RES/2379, see above note 3. The mandate was unanimously extended through UN Securi-
ty Council resolution 2490 (2019), Threats to international peace and security, UN Doc.
S/RES/2490, on 20 September 2019 (https://www.legal-tools.org/doc/l2hnjy/).
10
S/RES/2379, para. 3, see above note 3.

Following extensive engagement between the UN and the Govern-

ment of Iraq, the Terms of Reference regarding the activities of the Investi-
gative Team in Iraq were agreed and approved by the Security Council on
13 February 2018. The document presented an enhanced framework for co-
operation and collaboration between the Government of Iraq and the Inves-
tigative Team in the implementation of this mandate, while providing the
more detailed legal basis underpinning the impartial and independent na-
ture of its work.
20.2.2. The Normative Integrity Framework of the United Nations
Investigative Team to Promote Accountability for the Crimes
Committed by Da’esh/ISIL
Throughout both resolution 2379 (2017) and the Terms of Reference, we
see how the core normative integrity framework of the Investigative Team
intertwines and adapts to these fundamental operational principles of inde-
pendence and respect for national sovereignty. The interconnected nature of
these imperatives is crystallized on two levels, individual and institutional,
personal and organizational. Through the legal framework established by
the Council to govern the Team’s work, and as reflected in its investigative
activities in the first year of its operation in Iraq, we see the interconnected
nature of measures aimed at securing the integrity of actions undertaken by
Team members and the independence, impartiality and ultimate value of its
work to the communities it was established to serve.
20.2.2.1. United Nations Security Council Resolution 2379 (2017)
Within the core substantive mandate of the Investigative Team, reflected in
paragraph 2 of Resolution 2379 (2017), the Security Council included a
both deontological and consequentialist framework for the integrity of the
Team’s investigative work. Specifically, its work in collecting, preserving
and storing evidence in Iraq of acts that may amount to war crimes, crimes
against humanity, and genocide committed by ISIL must be carried out “to
the highest possible standards”, 11 with detail of such standards to be in-
cluded in the Terms of Reference. The purpose in the application of such
standards is to “ensure the broadest possible use before national courts, and
complementing investigations being carried by the Iraqi authorities, or in-
vestigations carried out by authorities in third countries at their request”. 12
11
Ibid., para. 2.
12
Ibid.

In addition to this broad deontological principle of “highest possible

standards”, the Council emphasizes in paragraph 6 of resolution 2379
(2017) that the Team should be “impartial, independent and credible” 13 and
that it must operate in a manner consistent with “the Terms of Reference,
the Charter of the United Nations and United Nations best practice, and
relevant international law including international human rights law”. 14
It is this reference to “the highest possible standards” that provides
much of the immediate basis for the integrity framework developed since
the establishment of the Investigative Team, serving as a guiding principle
in the introduction and development of policies, procedures and practices
with respect to evidence and information management, witness protection
and support, testimonial evidence collection, chain of custody processes,
and recruitment practices. In the implementation of this principle, Security
Council resolution 2379 (2017) is clear that the Terms of Reference are the
primary source to be referenced. 15 In addition, best practices and proce-
dures from existing international accountability mechanisms, including the
International Criminal Tribunals for the former Yugoslavia and Rwanda
(‘ICTY’ and ‘ICTR’ respectively) and the International Criminal Court,
have also been an important source of guidance, as well as recognized in-
ternational standards and UN and other policy guidelines such as the UN
Guidelines on the Role of Prosecutors, 16 and the International Protocol on
the Documentation of Investigation of Sexual Violence in Conflict. 17
One aspect of integrity is retaining a focus on core competencies.
The requirement of doing the basics properly includes: simply following
the evidence and interviewing witnesses in a structured way; collecting
physical and documentary evidence in a manner that best ensures its ad-
missibility; conducting gap analysis reviews to ensure awareness of the
historical, religious, cultural and political environment; and being alive to
the reality that different narratives may be given by witnesses not only
13
Ibid., para. 6.
14
Ibid.
15
Ibid., para. 2.
16
UN Guidelines on the Role of Prosecutors, Adopted by the Eighth United Nations Congress
on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7
September 1990 (https://www.legal-tools.org/doc/15b063/).
17
Sara Ferro Ribeiro and Danae van der Straten Ponthiz, International Protocol on the Docu-
mentation and Investigation of Sexual Violence in Conflict, on behalf of the Foreign and
Commonwealth Office, second edition, London, 2017.

from the vagaries of witness recollection and perspective, but sometimes

may also be influenced by societal and community context. Awareness of
all these factors – and a determination to ‘get to the truth’ based upon solid
evidence and a constant reassessment of what is collected – is a pre-
requisite to the integrity of any investigation.
Beyond the establishment of a broad normative basis for the integrity
framework of the Team, resolution 2379 (2017) also puts in place a trans-
parency measure with respect to the work of the Team by requesting the
Special Adviser to complete reports on the activities of the Team 90 days
after commencing work, and thereafter every 180 days, and to present these
reports to the Security Council. While such a reporting mechanism is well
aligned with the standard practice of the Council concerning entities estab-
lished pursuant to its legislative powers, these reports and associated brief-
ings provide an important opportunity to explain the broad strategic ap-
proach to be adopted by the Team in the conduct of its work, and the basis
for decisions relative to the allocation of investigative focus and resources.
To date, these reports have, inter alia, served to outline the core strategic
principles governing its work, 18 the three initial investigative priorities of
its Field Investigation Units, 19 the addition of further dedicated investiga-
tive capacity in order to address crimes committed by ISIL against Chris-
tian, Kaka’i, Shabak, Sunni and Turkmen communities; 20 and the adapta-
tion of its strategic approach in the third reporting period to allow the Team
18
First report of the Special Adviser and Head of the United Nations Investigative Team to
Promote Accountability for Crimes Committed by Da’esh/Islamic State in Iraq and the Le-
vant, UN Doc. S/2018/1031, 15 November 2018, paras. 19–27 (https://www.legal-tools.org/
doc/7bq4w0/).
19
Second report of the Special Adviser and Head of the United Nations Investigative Team to
vant, UN Doc. S/2019/407, 17 May 2019, para. 13 (‘Second report of the Special Adviser’)
(https://www.legal-tools.org/doc/siofyo/). These three initial investigative priorities are: (a)
Attacks committed by ISIL against the Yazidi community in the Sinjar district in August
2014; (b) Crimes committed by ISIL in Mosul between 2014 and 2016, including the execu-
tion of religious minorities, crimes involving sexual and gender-based violence, and crimes
against children; (c) The mass killing of unarmed Iraqi air force cadets from Tikrit Air Acad-
emy in June 2014.
20
Third report of the Special Adviser and Head of the United Nations Investigative Team to
vant, UN Doc. S/2019/878, 13 November 2019, para. 10 (https://www.legal-tools.org/doc/
b5y1rx/).

to respond rapidly to opportunities to support ongoing domestic proceed-

ings through targeted shorter-term investigative and analytical work. 21
Through these reports, the Team has sought to be as open and trans-
parent as possible about its strategic approach, priorities and use of re-
sources, while maintaining appropriate levels of confidentiality and pro-
tecting the ongoing integrity of the investigative process. This approach to
reporting is not merely a mechanism for informing Member States and the
public as to the Team’s progress, but also provides an accountability tool,
through which the effectiveness of its work can be assessed, albeit in broad
terms, by the Security Council, relevant stakeholders (including impacted
communities, non-governmental organizations and the public). Moreover,
the preparation and finalization of such reports represent a relevant oppor-
tunity for self-reflection and critical evaluation of the effectiveness of the
working methods and have, in the case of all reports produced to date, led
to adaptations to our strategic approach.
In taking such an approach to its reporting requirement, the Team
considers itself as fulfilling a broader duty, in line with ‘the highest possi-
ble standards’ not only to investigate, record and analyse, but also to inform
and to demonstrate transparency in its activities, thereby enhancing the le-
gitimacy and integrity of its work. Indeed, in light of limitations including
United Nations documentation word limits, the existing reporting require-
ment does not provide a sufficiently broad platform from which this duty of
transparency can be discharged. Looking forward, the Team is seeking to
develop additional mechanisms through which a more comprehensive, and
detailed approach can be taken with respect to the communication of its
strategic approach and overarching progress in the delivery of its mandate.
The recent establishment of the Team’s web site 22 is a further resource in
this regard, while social media platforms such as Facebook 23 and Twitter, 24
widely used in Iraq and the diaspora, are already being leveraged by the
Team as a means of keeping stakeholders apprised of its activities. As a
further step in support of the principle of transparency, the Team is also
presently assessing its full range of standard operating procedures with a
view to making them publicly available. In doing so the Team also hopes to
21
Ibid., para. 6.
22
See https://www.unitad.un.org/
23
See “UNITAD IRAQ”, Facebook (available on its web site).
24
See “UNITAD”, Twitter (available on its web site).

support other national and international accountability actors in improving

policies and practice in areas including witness protection, evidence-
collection and psycho-social support. These endeavours are carried out
while retaining appropriate levels of confidentiality given the often highly
sensitive nature of the criminal investigations being undertaken by the
Team.
20.2.2.2. Integrity as Addressed in the Terms of Reference Regarding
the Operation of UNITAD in Iraq
The Terms of Reference, the key source of guidance regarding the imple-
mentation of the ‘highest possible standards’ to be followed by the Team,
include more detailed provisions addressing considerations of integrity,
which have, in turn, been expanded upon during the operationalization of
its work as more tailored integrity policies.
As reflected above, the Terms of Reference address the issue of in-
tegrity directly within the context of sections addressing the structure and
composition of the Team. Commencing with leadership, paragraph 11 of
the Terms of Reference provides that the Special Adviser and Head of the
Team “shall be a person of high moral character and integrity” and “shall
have a proven record of independence and impartiality and be committed to
upholding justice, accountability and human rights and ensuring gender
equality”. 25 As addressed further in Section 20.3.1. below, a detailed set of
provisions are provided with respect to the staffing of the Team, emphasiz-
ing the need for its members to be “impartial and experienced profession-
als” and to benefit from expertise in a range of areas including international
criminal law, human rights law, Iraqi criminal law and procedure, sexual
and gender-based crimes, and the rights of women and children.
Building on existing obligations of all United Nations staff members,
as reflected upon further below, paragraph 18 of the Terms of Reference
underlines that the Special Adviser and all members of the Team shall “ex-
ercise their mandate and discharge their functions in full independence and
with the utmost impartiality and shall not seek or accept instructions in re-
gard to the performance of their functions from any government or any ex-
ternal source”. 26 Furthermore, all staff members “shall maintain the highest
25
See Terms of reference, para. 11, see above note 6.
26
Ibid., para. 18.

standards of efficiency, competence and integrity in the discharge of their

functions”. 27
Addressing the core evidence-collection activities of the Team, the
Terms of Reference provide a more detailed framework with respect to the
standards and key principles to be applied, while mirroring its simultane-
ously deontological and consequentialist approach. The Team shall assess
the evidence and materials in its possession, based on their “reliability and
probative value” 28 and will ensure its preservation and storage “in accord-
ance with international criminal law standards and taking into account Iraqi
criminal and procedure laws, in order to ensure their broadest possible usa-
bility and admissibility in fair and independent criminal proceedings, con-
sistent with applicable international law”. 29
Addressing the issue of integrity in the context of the Team’s work
with victims, paragraph 21 of the Terms of Reference requires that appro-
priate measures be taken to respect and ensure respect for the “privacy, in-
terests and personal circumstances of victims, in the light of their age, sex,
sexual orientation, gender and health, and taking into account the nature of
the crime, in particular where it involves sexual violence, gender violence
or violence against children”. 30 Furthermore, the Team is required to adopt
procedures and methods of work for the protection of victims and witness-
es to ensure that they “and any other persons who cooperate with the Inves-
tigative Team can do so in safety and security”. 31 In line with this approach,
the Team is required to seek to obtain the informed consent of all witnesses
and other sources prior to sharing evidence with domestic authorities. 32
The imperative of engaging with victims and witnesses in line with
the principles of integrity and dignity is further reflected in the section of
the Terms of Reference addressing co-operation between the Team and the
Government of Iraq. \It provides in paragraph 44(f) that the Government
will ensure effective co-ordination with respect to the protection of “all
those who come into contact with the Investigative Team, and an undertak-
ing that no such person shall, as a result of such contact, suffer harassment,
27
Ibid.
28
Ibid., para. 6.
29
30
Ibid., para. 21.
31
Ibid., para. 22.
32
Ibid., para. 20.

threats, acts of intimidation, ill-treatment or reprisals”. As reflected further

in Section 20.3.2 below, the implementation of integrity measures concern-
ing victims and witnesses has been an early priority in the establishment of
the integrity framework of the Team.
20.2.2.3. The Broader UN Integrity Framework
As a United Nations Secretariat entity, the Team is also embedded in the
established governance framework of the Organization, including relevant
integrity policies, procedures and practices applicable to its over 43,000
staff members. As noted above, this point is emphasized in both Security
Council resolution 2379 (2017) and the Terms of Reference of the Team
which provide, collectively, that its procedures of work must be consistent
with, inter alia, the Charter of the UN and UN policies and best practice.
As with all Secretariat entities, the ultimate starting point for the in-
tegrity framework of the Team is the Charter itself and in particular Chap-
ter XV regarding the functioning of the Secretariat. Article 100 of the Char-
ter emphasizes the exclusively international and independent functions ex-
ercised by staff members, prohibiting them from seeking or receiving in-
structions “from any government or from any other authority external to
the Organization”. 33 Staff members must also “refrain from any action
which might reflect on their position as international officials responsible
only to the Organization”. 34 Furthermore, upon joining the Organization,
Member States undertake, pursuant to paragraph 2 of Article 100, to re-
spect the “exclusively international character of the responsibilities of
United Nations staff and not to seek to influence them in the discharge of
their responsibilities”. 35 It is underlined that all staff shall be appointed by
the Secretary-General and that in making such appointments paramount
consideration will be given to the necessity of securing the “highest stand-
ards of efficiency, competence, and integrity”. 36
The United Nations Staff Regulations and Rules, as approved by the
General Assembly pursuant to Article 101 of the Charter, 37 as well as the
33
UN Charter, see above note 4.
34
Ibid.
35
Ibid.
36
Ibid.
37
A/RES/72/254, see above note 5.

United Nations Financial Regulations and Rules, 38 provide further detailed

elements of the Organizational integrity matrix, applicable to all Secretariat
staff members including those of UNITAD. 39
Staff Regulation 1.1(d) reiterates the requirement of Article 100 of
the Charter by providing that the Secretary-General shall seek to ensure
that the paramount consideration in the determination of the conditions of
service shall be the necessity of securing staff of the highest standards of
efficiency, competence and integrity, with due regard paid to the im-
portance of recruiting staff on as wide a geographical basis as possible. The
Staff Regulations further set out several “core values” and “general rights
and obligations” of staff members and addresses in further detail what the
concept of integrity means within the Organizations normative framework.
Staff Regulation 1.2 (b) in particular provides that the concept of integrity
“includes, but is not limited to, probity, impartiality, fairness, honesty and
truthfulness in all matters affecting their work and status”.
Building on these conceptual underpinnings, Staff Regulations 1.2(c)
and (g) elaborate some of the basic obligations placed on staff members, as
well as the protections afforded to them, in the implementation of this con-
cept of integrity, providing that:
(b) Staff members have the duty to report any breach of the
Organization’s regulations and rules to the officials whose re-
sponsibility it is to take appropriate action and to cooperate
with duly authorized audits and investigations. Staff members
shall not be retaliated against for complying with these duties;
(g) Staff members shall not use their office or knowledge
gained from their official functions for private gain, financial
or otherwise, or for the private gain of any third party, includ-
ing family, friends and those they favor. Nor shall staff mem-
bers use their office for personal reasons to prejudice the posi-
tions of those they do not favor.
38
See UN General Assembly, Resolution adopted by the General Assembly on 24 December
2012, UN Doc. A/RES/67/246, 24 December 2012 (https://www.legal-tools.org/doc/l0arge/)
and Secretary General’s bulletin 2013/4, Financial Rules and Regulations of the United Na-
tions, UN Doc. ST/SGB/2013/4, 1 July 2013 (https://www.legal-tools.org/doc/zos34u/).
39
See also the Secretary-General’s Bulletin, Status, basic rights and duties of United Nations
Staff Members, UN Doc. ST/SGB/2016/9, 21 July 2016 (https://www.legal-tools.org/doc/
mjxin2/). This contains a commentary by the Secretary-General to assist staff members in
better understanding the obligations applicable to staff conduct.

Further developing these obligations and protections regarding the

reporting of acts of corruption and other integrity breaches, the Secretary-
General’s Bulletin on Protection against Retaliation 40 provides detailed
guidance for the implementation of the requirement on all staff members to
report observed misconduct including suspected fraud, waste, abuse and
corruption, as well as the procedural protections available to those that do
come forward. The introduction of strengthened measures in this area rep-
resented a key focus of the reform agenda of Secretary-General António
Guterres. It includes introducing the ability for the UN Ethics Office and
Office of Internal Oversight Services to take preventive action where a risk
of retaliation has been identified, the extension of protection from retalia-
tion beyond staff members to contractors, and greater transparency as to
measures taken against members found to have retaliated against them.
In addition to benefiting from the overarching United Nations ethics
and integrity policy framework, UNITAD and other criminal justice entities
within the UN Secretariat are also embedded into the organizational and
institutional architecture in this field. Broadly, these can be divided into
two strands: (i) efforts to promote an organizational culture informed by
ethics and integrity, with a focus on prevention measures such as conflicts
of interest detection and remediation, financial disclosure systems, and pro-
tection from retaliation policies led primarily by the United Nations Ethics
Office; and (ii) measures related to the detection and investigation of al-
leged acts of misconduct, inclusive of integrity breaches, led by the Office
of Internal Oversight Services. The work of the Ethics Office is of particu-
lar relevance and support during the start-up stages of an entity within the
Organization, with the Office able to provide valuable advice with respect
to the establishment of ethics functions and the application of preventive
policies within the specific context of a new entity. A confidential one-to-
one ethics briefing for all incoming Assistant-Secretary-Generals is a par-
ticularly welcome initiative, ensuring that the vision of the Secretary-
General with respect to ethics and integrity framework can be clearly artic-
ulated by mission leadership and cascaded down to incoming staff mem-
bers of the new entity. The voluntary publication of financial disclosures
made by senior UN officials is a further important measure in instilling
confidence with respect to the integrity of senior management. This initia-
40
Secretary General’s Bulletin, Protection against retaliation for reporting misconduct and for
co-operating with duly authorized audits or investigations, UN Doc. ST/SGB/2017/2, 20
January 2017 (https://www.legal-tools.org/doc/bhpac4/).

tive, in which the first author participates, is particularly effective in

demonstrating the absence of conflicts of interest amongst mandate-holders.
The cross-organization training and awareness-raising activities led
by the Ethics Office, such as the Leadership Dialogue undertaken in 2020
on the issue of conflicts of interest, have allowed members of the Team to
develop a better understanding of how to engage with the broader ethical
infrastructure of the United Nations. These initiatives, in which all staff
members of the Team must participate, also provide a further example of
how the effective implementation of an ethics framework begins with the
actions and ‘tone from the top’ from senior management. 41
The presence of a pre-existing policy and institutional integrity
framework into which a new entity such as UNITAD can be embedded is
essential in providing a mature and clear architecture for ethical conduct by
all staff members from the outset of its work. The policies, practices and
institutional structures highlighted above have served as an important basis
for action regarding integrity matters in areas including conflicts of interest,
information-management and protection from retaliation.
However, given the breadth of activities undertaken by United Na-
tions entities, cross-organization policies cannot comprehensively address
the specific integrity challenges faced by staff members in the exercise of
their particular functions. This is particularly the case for members of ac-
countability mechanisms such as UNITAD, 42 in which ethical and integrity
challenges associated with the exercise of investigative functions require
tailored solutions based on best practices developed in prior judicial and
investigative mechanisms.
In recognition of this, emphasis has been placed in the early stages of
operation of UNITAD on the development and implementation of special-
ized measures addressing some of the specific integrity challenges faced in
the conduct of its investigative work.
41
“United Nations Leadership Dialogue”, UN Ethics Office web site (available on UN’s web
site).
42
Similar considerations will apply for recently-established entities such as the International,
Impartial and Independent Mechanism (‘IIIM’) to assist in the Investigation and Prosecution
of Persons for the Most Serious Crimes Under International Law committed in the Syrian
Arab Republic since March 2011 and the Independent Investigative Mechanism for Myan-
mar (‘IIMM’).

20.3. The Development and Implementation of Integrity Policies in the

Operationalization of an International Criminal Justice
Mechanism
Courage is the most important attribute of a lawyer. It is more
important than competence and vision. It can never be de-
limited, dated or outworn and it should pervade the heart, the
halls of justice and the Chambers of the mind. 43
Robert F. Kennedy’s famous quote sears itself on the memory in a way that
great oratory so often does. Whilst the quote unfairly diminishes or rele-
gates the importance of competence (and all that entails) as a bedrock at-
tribute for all lawyers, it elegantly casts light upon a truth. Be that as it may,
courage is certainly the bedfellow of integrity. It contains within that con-
cept a determination to ensure that right is done, regardless of external con-
siderations or pressures on the investigator, counsel or institution con-
cerned. It calls to mind the dictum fiat justitia ruat caelum: “let justice be
done though the heavens fall”.
This is important in any accountability mechanism which will inexo-
rably traverse the myriad fault lines between national, regional and interna-
tional politics, different interests, competing histories and dearly held and
oft-repeated narratives. Through all that, cases must be built not on the
popularity of a submission or the acclaim with which a position is advocat-
ed, but on solid evidence. As reflected further in this section, there can be
no hierarchy of victims in the work conducted by such mechanisms.
This objective process of investigation certainly requires courage.
More specifically, the courage to follow evidence and principle with unwa-
vering commitment. An appreciation of the various aspects of integrity and
how these are incorporated into tailored effective procedures and method-
ologies specific to the operational imperatives and investigative priorities
of the relevant entity is essential to such an approach. Furthermore, an ap-
proach based on courage, requires that individuals are supported in the im-
plementation of these specialized frameworks to ensure that there is no in-
tegrity gap across the Team. If integrity is lacking in one area, the conse-
quences may be monumental. This is brought into the starkest of relief
when evidence collected is presented in criminal trials requiring proof be-
43
Robert F. Kennedy, University of San Francisco School of Law, 29 September 1962.

yond reasonable doubt, and when the duties and responsibilities of various
actors are so frequently challenged. 44
In constructing its own specialized integrity framework, the Investi-
gative Team has sought to accommodate the legitimate demands of States,
non-governmental organizations, but most importantly those of survivors
and impacted communities, by placing emphasis on operationalizing its
mandate while also dedicating resources to ensuring an adequate integrity
framework is developed to guide initial activities. UNITAD, as all recently-
established international criminal justice entities, has been required to
demonstrate its ability to deliver on its mandate and satisfy the needs of
stakeholders from the outset of its work. The commencement of investiga-
tive activities and the establishment of core integrity policy frameworks are,
therefore, processes that must be carried out in parallel.
It should be recognized that this simultaneous demand for the estab-
lishment of specialized deontological structures and the delivery of core
functions is not a challenge particular to UNITAD or even specific to the
current political climate. 45 These simultaneous challenges have been faced
by other international mechanisms including the ICTY, the ICTR, and in-
deed the ICC where the Office of the Prosecutor was required to develop
the regulations and code of conduct governing its work while at the same
time taking forward its first investigations and prosecutions. The degree to
which this was achieved is a matter that may be debated. There have cer-
tainly been challenges. This is starkly reflected by the fact that whilst the
Rome Statute came into force in 2002, no such regulations or code were in
place by the time the Prosecutor submitted the Lubanga Case to the Trial
Chamber in June 2008. With respect to the code of conduct, this remained
the case for a further five years until the Defence sought an order in
Muthaura that the ICC Code of Conduct apply to the Prosecution given the
absence of a dedicated code being promulgated by the Prosecutor in the
preceding 11 years. 46
44
For example, evidence may be excluded if obtained in a manner contrary to that provided
for international human rights law, and cases may be unnecessarily ‘politicised’ because of
the use of intermediaries or witnesses from only one side of the political divide.
45
Although it is perhaps worth recalling that unlike IIIM and IIMM, UNITAD was not preced-
ed with a commission of Experts or Inquiry, the materials of which would be turned over to
the mechanism when established.
46
See ICC, The Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, Trial
Chamber, Joint Defence Application for an Order to the Prosecutor for the provision of a list
containing the bar memberships and good standing status of Prosecution trial lawyers ex-

We explore below three aspects of the specific integrity challenges

and solutions that the Investigative Team has addressed during this initial
period of our work, specifically that of personal integrity, integrity in en-
gagement with survivors and impacted communities, and institutional in-
tegrity and independence.
20.3.1. Building a Team Aligned with Principles of Integrity and
Independence
The interconnected and complementary nature of the two core pillars of the
Investigative Team’s mandate, and the central importance of ensuring the
integrity of the Team’s work in the delivery of its mandate, is of particular
prominence in the framework addressing the composition and activities of
its staff members.
Pursuant to both paragraph 5 of resolution 2379 (2017) and para-
graph 14 of the Terms of Reference, Iraqi investigative judges, and other
criminal experts, including experienced members of the prosecution ser-
vices, must be appointed to the Team, working “on an equal footing along-
side international experts”. Building on this principle of equality and bal-
ance between the national and international components within the Team,
the Terms of Reference further provide that the appointment of national
criminal experts, while ultimately made by the Special Adviser, must be
carried out in consultation with the Government of Iraq. This represents an
attempt by the Council to balance the need to integrate the principle of ad-
aptation to national contexts and respect for the sovereignty of Iraq into the
traditional framework of international accountability mechanisms.
In this context, implementing a common integrity culture and norma-
tive framework in which all members of the Team consider themselves per-
sonally invested is central to our ability to function effectively as a cohe-
sive unit. As referenced above, this integration of collective principles of
integrity and impartiality starts with leadership of the Team, with paragraph
11 of the Terms of Reference providing that the Team shall be headed by a
pected to make submissions at trial and Request that the Trial Chamber promulgate a proto-
col of professional ethics applicable to Prosecution lawyers, 17 January 2013, ICC-01/09-
02/11 (https://www.legal-tools.org/doc/c9e14f/); and Decision on the Defence application
concerning professional ethics applicable to prosecution lawyers, which confirmed the code
would apply to the OTP in the interim prior to the promulgation of a code by the OTP, 31
May 2013, ICC-01/09-02/11 (https://www.legal-tools.org/doc/d27ea0/).

Special Adviser of high moral character and integrity and possessing the
highest level of professional competence.
Since the first author’s appointment in August 2018, he has sought to
ensure that these principles and qualities are reflected in his leadership but,
most importantly, also transmitted down through all teams and units. In
developing our staffing structure, which now totals around 150 staff mem-
bers based in Iraq, our objective has been to create a symbiotic relationship
of mutual learning between national and international elements, thereby
establishing a common identity and commitment to delivery of accounta-
bility with respect to ISIL crimes. By forging a common sense of purpose
across all components of the Team, we provide a stable basis upon which
the principles of integrity, impartiality and independence can be integrated
into all aspects of our work.
20.3.1.1. Empowering National Expertise Ensuring Gender Balance
Within the Team
This commitment to the development of a cohesive and balanced approach
to our work is reflected in the staffing structure adopted at the outset of the
development of the Team in 2018, with national experts integrated into all
key substantive sections, including the Field Investigation Units and Anal-
ysis and Evidence Unit, as well as specialist entities, such as the Sexual and
Gender-Based Violence and Children’s Unit, Forensic Sciences Unit and
Witness Protection and Support Unit. This priority given to ensuring an
effective national component across all key parts of the Team has further
been reflected in our development of specialized, supplementary projects
funded through extrabudgetary funds provided by Member States. Specifi-
cally, through these supplementary operational projects, additional special-
ized units are being established in areas including digitization of eviden-
tiary material, financial crimes and protection of cultural heritage, all of
which incorporate at least one-third of national expert staffing.
In addition to ensuring the national component of the Team is suffi-
ciently prioritized and resourced, attention has been paid to providing a
specialized function within the Team allowing national experts to effective-
ly guide and support the engagement of the Team with national authorities.
To this end, a dedicated National Engagement and Support Unit has been
established, headed by the most senior Iraqi national expert within the
Team. The creation of a dedicated entity to ensure appropriate and in-
formed strategic advice is provided to the Special Adviser, and to facilitate

effective co-operation and collaboration with the Government of Iraq, is

integral to the satisfaction of a key pillar of the mandate of the Team, while
also reflecting the unique and crucial value provided by its national com-
ponent in the delivery of operational priorities.
Beyond the important balance sought between national and interna-
tional staff members, a broader geographic and gender balance within the
Team has also served as an important element in developing an environ-
ment conducive to both the effective delivery of the mandate of the Team
and the development of a culture of integrity and respect. To this end, prior-
ity was given in our recruitment strategy to ensuring qualified female can-
didates, as well as those from underrepresented regions, were actively iden-
tified and encouraged as part of our work in building the initial Team. This
has been a successful approach, with women currently accounting for 48
per cent of substantive and support staff, and with all regional groups of the
United Nations currently represented in our staffing structure. More than
half of the senior management positions are held by female staff mem-
bers. 47 The principal legal systems of the world are also represented within
the team.
20.3.1.2. Forging a Common Identity and Integrity Framework
Across International and National Components
Effective adherence to the principles of integrity and impartiality first re-
quires the construction of a common identity and strategic vision, ensuring
that both national and international components view themselves as deliv-
ering as one in pursuit of a clearly identified common objective. The estab-
lishment and communication of clear strategic investigative priorities early
on in the Team’s work, based on engagement with national authorities, sur-
vivors, local communities and other national entities, has been key in this
regard, with dedicated Field Investigation Units tasked with pursuing indi-
vidual priorities. In addition, the establishment of structured and regular
fora in which Team members are able to share progress in the work of indi-
vidual units ensures that action remains co-ordinated and strategic objec-
tives can be adjusted based on experience gained through our field-based
investigative activities.
Building on the establishment of this initial collective strategic vision,
the Team has constructed its integrity framework by harnessing relevant
47
Second report of the Special Adviser, para. 16, see above note 19

United Nations policies, practices and procedures while also developing

specialized measures addressing the specific integrity challenges faced by
the Team in the implementation of its mandate. Priority has been placed on
ensuring a common understanding of the standards of conduct applicable to
all Team members.
As referenced above, our starting point is the UN Charter, 48 which,
through its Articles 100 and 101, addresses the issue of integrity and confi-
dentiality in broad terms. These principles are further reflected in the oath
of office signed by all Secretariat staff members upon joining the Organiza-
tion under which staff members declare and promise to exercise in all loy-
alty, discretion and conscience, the functions entrusted to them as interna-
tional civil servants.
In light of the often-sensitive nature of the evidentiary material col-
lected by the Team, as well as the requirements under the Terms of Refer-
ence that our work be conducted to the highest possible standards to ensure
the broadest possible use before national courts, the issue of confidentiality
and information-management represents a particularly important issue to
be addressed as part of our integrity framework. Reflecting this imperative,
the Team has sought to develop specialized solutions that build on the ex-
isting United Nations framework. Specifically, in line with section 5.3 of
the Secretary-General’s Bulletin entitled “Information sensitivity, classifi-
cation and handling”, 49 stricter controls beyond those required at an organi-
zational level have been developed by UNITAD.
As part of the efforts of the Team to tailor confidentiality and infor-
mation-handling policy to the specific demands of its mandate and compo-
sition, a Statement of Principles on Confidentiality and Information-
Management was developed at an early stage in our work, which must be
signed by all staff members as part of their onboarding process. Designed
as an initial step in the adaption of existing Secretariat-wide requirements
to the specific information-security challenges of UNITAD, the Statement
of Principles emphasizes that, as part of the Investigative Team, staff mem-
bers must ensure, inter alia, that: (i) the discharge of their functions with
the Team are exercised with the utmost discretion; (ii) no information is
communicated to external entities except as authorized by the Head of the
48
UN Charter, see above note 4.
49
Secretary-General’s Bulletin, Information sensitivity, classification and handling, UN Doc.
ST/SGB/2007/6, 12 February 2007 (https://www.legal-tools.org/doc/3bfra2/).

Investigative Team; (iii) all information collected by the Team is registered

in the UNITAD information-management system and classified in line with
organizational information-handling policies; and, (iv) any electronic trans-
fer of information within the Team is conducted only through the use of
protected and secure means of communication.
Through the establishment of a common and tailored confidentiality
policy, the Investigative Team has sought to ensure a collective understand-
ing of staff members obligations and engender a joint commitment to a cul-
ture of implementation of the highest standards of integrity in our work.
This approach, harnessing organizational frameworks while also develop-
ing tailored guidance and policies applicable to the specific demands and
integrity challenges faced by the Team, has been applied to a variety of ar-
eas of our work.
20.3.2. Integrity in Engagement with Survivors, Witnesses and
Impacted Communities
The relevance and fundamental importance of the concept of integrity in
the working modalities of international investigative and judicial mecha-
nisms is clearly shown when considering their engagement with witnesses
and survivors of the crimes in relation to which accountability is sought. In
asking those that have suffered from violence, displacement and sexual and
gender-based crimes to reengage with their memories of such events, it is
essential that effective and tailored mechanisms are put in place to ensure
that the integrity of investigative practices and procedures are upheld and
the dignity of such witnesses and survivors is prioritized above all else.
The need to integrate integrity measures into witness and survivor
engagement has been particularly pronounced in the work of UNITAD, as
part of which investigators, legal officers and other team members are re-
quired to work with some of the most vulnerable victims of ISIL crimes,
including those who have survived mass killings, sexual slavery and, in
some cases, complete destruction of their communities. In response to this
imperative, we have sought to develop both an institutional and policy-
based response that prioritizes the delivery of specialized, targeted support
to those with which we engage, as well as clear guidance for staff members
to ensure a consistent and principled approach aligned with international
criminal law standards.

20.3.2.1. Integrity in Investigative Prioritization with Respect to

Impacted Communities: No Hierarchy of Victims
The victims of ISIL come from diverse communities across Iraq. No com-
munity, religion, gender or ethnic group was spared the cruelty and venality
of the Un-Islamic vision propagated by this terrorist organization. While
international attention has at times been focused on horrendous crimes
against some particular communities – other heinous acts against other re-
ligious or ethnic groups have received less attention. Even though there
were various reasons for this, the imperative to ensure the actual and per-
ceived integrity of its investigations, and the implementation of its mandate
more broadly, required that UNITAD emphasized from the very outset of
its work that there was “no hierarchy of victim” with respect to the focus of
investigative activities.
Whilst resources would be deployed by UNITAD in light of the scale
or extent of crimes committed by ISIL in specific locations, and in relation
to the most serious crimes committed against particular communities, a
concerted attempt was made to ensure that all victim groups felt engaged
and valued from the beginning of the work of the Team in Iraq. This in-
volved an assurance that crimes committed by ISIL against all groups
would be documented and recorded and cases built based upon credible
evidence. This approach is critical in any context. We have repeatedly seen
that the view that ‘some lives matter more than others’ is one that all too
easily takes root and festers in a manner that not only is inimical to justice
but which – too often – contains the seeds to future conflict and misery.
By 2020, UNITAD was able to fulfil its pledge that investigations
were ongoing in relation to the principal groups that had been targets of
ISIL crimes. Linked to this was a requirement not to label crimes prema-
turely. Certain reports had labelled crimes under a particular category under
international criminal law; however, UNITAD explained to survivor groups
and affected communities that any such labelling and categorization would
only be based upon its own independent investigations. The candour in ex-
plaining this was well understood by the affected communities. Indeed, it
may have been one of the measures that helped build their trust and confi-
dence in the work of UNITAD during the early months of its activities.
As a general point, there can be no integrity in engaging with im-
pacted communities without honesty. It is imperative that a team is cogni-
zant of what international criminal justice can do and, at the same time, be
willing to explain to these communities frankly what it cannot do. It must

be borne in mind that these impacted communities have very often sur-
vived devastating events. Indeed, they may still be reliving these experi-
ences due to psychological or physical injuries, or the reality of the predic-
ament in refugee camps or as displaced communities. Very often, some ac-
tors, either NGOs, national authorities or agencies, may present justice to
them as transformational. Whilst it can be in some ways, it is trite that it
does not bring the dead back to life or restore a family that has endured
horrors that should never have been imagined, never mind carried out. In
these circumstances, a candid discussion about the limitations of ‘justice’,
and the difficulties in achieving it, can be kinder and more credible. In fact,
when this is combined with an explanation of the importance of preserving
a record, collecting evidence, and endeavouring to hold criminals to ac-
count in fair trials, impacted communities can be galvanized in a way that
is indispensable to an investigation. Even if momentarily disappointed, or
sobered by certain realities, they will see the investigative team as honest
and sincere. This form of personal and collective integrity may have a sig-
nificant impact on how a team is perceived and received by an affected
community given the importance of managing expectations.
20.3.2.2. Institutional Responses to the Implementation of Witness
Protection Policies Aligned with Principles of Integrity
In developing an integrity-based framework concerning the engagement
with survivors and witnesses, it may be assumed that the core policies and
practices of the relevant mechanism or entity would represent the starting-
point. However, in no other area of our work are the human resources, the
institutional expertise of an entity more important. Priority must, therefore,
above all, be given to securing and effectively structuring the institutional
architecture of the Team focused on ensuring the effective delivery of an
approach prioritizing the dignity of survivors and witnesses and the provi-
sion of support and protection to reduce to an absolute minimum the risk of
re-traumatization.
In developing this institutional framework, UNITAD has prioritized
the establishment of two key pillars: (i) a dedicated Witness Protection and
Support Unit (‘WPSU’), with responsibility for ensuring that the Team en-
gages with all survivors and victims in a manner aligned with international
standards; and (ii) a specialized Gender Crimes and Crimes against Chil-
dren Unit (‘GCCU’) charged with ensuring that the work of the Investiga-
tive Team with respect to such crimes is conducted in a manner that deliv-

ers a coherent approach to investigative activities and addresses the specific

cultural, psychological and medical considerations inherent in the engage-
ment of the Team with the most vulnerable of survivors.
In developing the WPSU, priority has been given in particular to en-
suring the Team is able to address the psychological needs of victims and
witnesses. Clinical psychologists have formed an integral part of the initial
staffing of this Unit and have been deployed to both assist in the develop-
ment of the initial policy and normative integrity framework of the Team as
well as support and guide the early operational investigative activities of
the Field Investigation Units.
Specifically, these specialists have worked to develop a dedicated re-
ception facility within UNITAD premises that provides an emotionally safe
and secure environment in which witnesses and survivors can be received
by members of the Team. This has included the incorporation of elements
within the physical infrastructure of UNITAD facilities addressing cultural
sensitivities, gender considerations and the specific needs of children. Both
the WPSU and the GCCU also play a central role in the conduct of investi-
gation-specific threat and risk assessments to identify the level of vulnera-
bility of witnesses and survivors, and identify any specific protection
measures or approaches that are required to be implemented prior to the
witnesses being interviewed or further engaged with by investigators.
With respect to the operational work of the Team, the clinical psy-
chologists play a crucial role in providing initial briefings and sensitization
sessions with witnesses to ensure they fully understand the focus and ob-
jectives of the Team’s work and how their testimony contributes to its ef-
forts in supporting national accountability processes. Where deemed neces-
sary, psychologists may assist in the conduct of the investigative interview
to ensure the wellbeing of the witness is kept in constant view. Following
the conclusion of interviews, these experts conduct a debrief with the wit-
ness to ensure that they feel comfortable about the interview procedure and
also carry out an assessment to identify whether a referral of the individual
to a psychosocial or mental/medical health service-provider would be nec-
essary for the provision of further services. Efforts are presently being
made to establish a psycho-social and mental health service provider net-
work for this purpose, with two such referral organisations having been
secured at the time of writing.
This specialized expertise within the UNITAD staffing structure has
also been supplemented through co-operation and partnerships with exter-

nal entities such as with the Human Rights in Trauma Mental Health Pro-
gram at Stanford University who have provided support with respect to the
development of standard operating procedures and practices for engage-
ment with vulnerable witnesses and a forthcoming field guide on trauma-
informed approaches to investigative activities. Such collaboration reflects
a broader commitment by the Team to leverage the work and expertise of
entities both within the UN system and externally, so as to develop the
strongest possible standards of investigative practices.
Drawing on the expertise of their specialized staffing structure, as
well as its external partnerships, the leadership of the WPSU and the
GCCU have, in turn, led the development of the tailored integrity frame-
work of the Team as relevant to the interaction of its members with wit-
nesses, victims and survivors. The rapid development and operationaliza-
tion of this framework have been crucial in engendering the trust of im-
pacted communities in Iraq which has also allowed those most vulnerable
individuals to come forward with their accounts and enhance their effective
participation in the accountability process.
20.3.2.3. Specialized Integrity Policies and Practices with Respect to
Survivors and Witnesses
Drawing on the specialized institutional and staffing architecture of the
Team regarding witness and survivor engagement, the Team has put in
place a tailored policy framework that seeks to ensure all investigative
work is adapted to address the specific needs of ISIL victims and witnesses.
The central policy in this regard is the Witness Protection Strategy, devel-
oped by the WPSU and the GCCU at the outset of the Team’s work, which
builds upon previous models adopted at the ICTY, the ICTR, Special Court
for Sierra Leone, the ICC and the Special Tribunal for Lebanon, in particu-
lar concerning the conduct of threat assessments and the consequent im-
plementation of specialized protection procedures with respect to individu-
al witnesses.
The guiding operating principle of the Team under this strategic ap-
proach is to limit the potential exposure of witnesses to identified threats,
by ensuring that interviews are conducted according to a systematic and
deliberate planning process and on the basis of an identified investigative
need. However, the strategy does not aim to ensure only physical safety
and confidentiality but takes into account the needs of witnesses in a holis-
tic manner including psychological wellbeing, dignity, privacy, respect,

appropriate assistance, sensitivity to special needs, consent and right to in-

formation. Staff members are further guided as to how key international
standards and relevant parts of the domestic legal framework are to be in-
corporated into their operational investigative activities, in particular, the
collection of testimonial evidence through the conduct of interviews.
The strategy details four levels of protection to be provided to poten-
tial witnesses to ensure the confidentiality of witnesses’ interaction with the
Investigative Team, protection of their security, physical and psychological
well-being, privacy and dignity, and which are proportionate to the as-
sessed risks. First, good practice guidelines are developed by the Unit, with
expert input from its clinical psychologists, in relation to contact and inter-
action with witnesses. Emphasis is placed here on creating an operational
awareness and a systematic approach, which aims to enhance the confiden-
tiality of witnesses’ interaction with the Investigative Team and sensitivity
to their needs. As a second tier, and based on the initial investigation spe-
cific threat and risk assessment conducted by the WPSU, local operational
measures have been developed in close co-ordination with competent na-
tional authorities. Here in particular, the National Operations Centre under
the Office of the Prime Minister has provided invaluable support in the es-
tablishment of all operational procedures relevant to the investigative activ-
ities of the Team. At this level, specific attention has been paid to agreeing
on a response mechanism to witness security emergencies, as well as the
introduction of increased local protective measures at locations where wit-
nesses reside, including internal displacement camps.
As a third element of our strategic approach, the Investigative Team
has put in place an initial set of procedural protection measures aimed at
limiting the disclosure of information which could lead to the identification
of a protected witness, and support measures aimed at creating such condi-
tions which will best facilitate the testimony of vulnerable witnesses to the
fullest possible extent. Reflecting the need to develop this policy frame-
work in parallel with the commencement of investigative activities, a pro-
visional set of procedures has been put in place in this regard, which is be-
ing refined based on experience gained from the initial engagement with
witnesses and is now presently being finalized into a set of formal standard
operating procedures.
Finally, in co-operation with Iraqi authorities, steps are being taken
to develop a specialized witness protection programme. The programme is
aimed at limiting the disclosure of information which could lead to the

identification of a protected witness, and support measures aimed at creat-

ing such conditions which will best facilitate the testimony of vulnerable
witnesses to the fullest possible extent.
Based on this overarching strategic approach, a more detailed set of
standard operating procedures and guidelines implementing this integrity
framework is being put in place through the joint efforts of the WPSU and
the GCCU. It includes the development of a good-practices guideline for
investigators on the contact and interaction with witnesses, operational
awareness, and a systematic approach in ensuring the confidentiality of
witnesses’ interaction with the Investigative Team and sensitivity to the
specific needs of individual witnesses.
20.3.3. Institutional Integrity and Independence as an Operational
Tool
The initial field-based activities of the Team, and in particular the early as-
sistance we have provided with respect to the excavation of mass grave
sites in northern Iraq, have shown how the ability to demonstrate our insti-
tutional independence, impartiality and integrity is crucial in providing a
basis for effective co-operation with Iraqi authorities and other partners in
Iraq. We have seen that the independent nature of our role and the impera-
tive to work closely with Iraqi authorities in the implementation of our
mandate, do not represent countervailing weights to be balanced but are in
fact mutually supportive pillars at the foundation of our work.
Our ability to demonstrate the independent and impartial nature of
the Team has been of particular importance in our initial engagement with
ethnic minority communities following our arrival in Baghdad, in particu-
lar with respect to the excavation of mass grave sites in northern Iraq.
Through dialogue with Yazidi community representatives and victims or-
ganizations in late 2018, a clear need was identified for the Team to assist
in providing reassurance to the victims’ families that the process of identi-
fication of bodies in mass grave sites and the analysis of forensic material
collected through this process would be conducted both in line with inter-
national standards and with sensitivity to religious and cultural norms of
that community. These communities emphasized the involvement of the
Investigative Team as an impartial, independent actor as central to their
confidence and support for the excavation process.
Our ability to serve as a neutral and impartial entity has also been
crucial in allowing the Team to facilitate co-operation with both national

authorities and the Kurdistan Regional Government in this field. In ad-

vance of excavation activities, the Investigative Team worked with the
Mass Graves Directorate of the Martyrs Foundation of the Government of
Iraq, the Medico-Legal Directorate of the Iraqi Ministry of Health and the
Ministry of Martyrs and Anfal Affairs of the Kurdistan Regional Govern-
ment to ensure relevant practices and procedures conformed to internation-
al standards. Similarly, UNITAD facilitated the signing of an agreement
that allowed DNA samples held by the Kurdistan Regional Government to
be included in a national database maintained by the Medico-Legal Direc-
torate in Baghdad, allowing for a significantly increased chance of achiev-
ing DNA matches. Recognizing this, work has adopted a ‘lead from be-
hind’ modality in which the substantive expertise and impartial role of the
Investigative Team have been leveraged to increase standards or work and
thereby strengthen the confidence of impacted communities in the excava-
tion process.
Conceptually, a shift in approach was encouraged in order to align
working methods with those used in criminal investigations, ensuring that
mass grave sites were treated as formal crime scenes. Following the con-
duct of initial capacity assessments by the Team, targeted training sessions
and in-depth technical consultations were conducted to enhance processes
and practices for, inter alia, the gathering of ante-mortem and post-mortem
information, evidence collection mechanisms, security arrangements for
excavation sites and facilities for the storage of biological material. During
the excavation process, guidance and assistance to national authorities were
provided to ensure that key steps were carried out in line with international
standards, including site coding, surface surveys, excavation activities,
preservation of the crime scene, adherence to appropriate field protocols,
the completion of evidence collection forms and the classification and
packing of evidentiary material. To date, this has led to the completion of
the excavation of 17 mass grave sites in Kojo village, sites of some of the
most serious crimes committed by ISIL during the period of 2014 – 2015,
as well as the commencement of work on a mass grave sites on the out-
skirts of Mosul of largely Sunni victims executed by ISIL and the “grave of
the mothers” at Solagh Institute in Sinjar, with excavations commencing in
2020.

20.4. Conclusion: The Central Role of Integrity in the Delivery of

Justice
Integrity without knowledge is weak and useless, and
knowledge without integrity is dangerous and dreadful. 50
The development and implementation of integrity measures can often be
viewed as an afterthought, an unwelcome distraction or, at worst, an im-
pediment to the real, meaningful work of international criminal justice in-
stitutions or indeed any professional organization. However, upon com-
mencement of activities of a newly-establishment entity such as UNITAD,
as preparations for investigative work begin and a vision for the practical
implementation of a mandate is put in place, the fallacy and short-
sightedness of this view are exposed.
Far from representing an extraneous element to be managed, the
principle of integrity represents the central pillar around which all action
must be built. As has been shown in this chapter, the implementation of a
comprehensive integrity framework is crucial in protecting the credibility
and perceived utility of our work. Our approach to this issue cannot be
piecemeal. A holistic, indivisible framework, addressing both individual
and institutional integrity, and prioritizing the dignity of the most vulnera-
ble victims with which we engage, must be prioritized. The implementation
of such an approach requires concerted action and a serious, and visible
commitment from entity leadership to its implementation from the very
outset of our work.
For UNITAD, placing the implementation of integrity measures at
the heart of our initial work has also served as a tool, a key to be used in
unlocking one of the central dynamics within our mandate. By maintaining
a focus on the core principle of integrity, we have been able to demonstrate
that the dual-core imperatives, that of ensuring independence and seeking
co-operation with domestic authorities, and that of demonstrating impar-
tiality and pursuing national engagement, do not present a dichotomy. In
fact, the opposite is true: when assessed through the prism of integrity, the
mutually reinforcing nature of those imperatives becomes clear. This ap-
proach has now been demonstrated in concrete and tangible terms through
the collection of accounts from victims, the excavation of gravesites and
the production of initial analytical products that will ultimately allow
50
Samuel Johnson, “Rasselas”, 1759, Ch. 41.

Member States to hold those responsible for the crimes of ISIL to account,
in line with the rule of law and due process.
As the Investigative Team has moved into the fully operational phase
of its work, and as it begins to provide direct support for domestic account-
ability processes, its ability to address new challenges will depend on its
capacity to continue to simultaneously leverage its unique position as an
impartial and independent entity, and maintain the continued support of the
people of Iraq. Our experience shows that adherence to the principles of
integrity and impartiality will be central to our ability to effectively support
the Government of Iraq in addition to effectively delivering on the promis-
es made to victims and survivors that those responsible for inflicting crimes
on their communities will be held accountable for their crimes.
The lessons learned from the initial stages of the work of UNITAD
can be extrapolated and applied to the activities and approach of interna-
tional criminal justice mechanisms more broadly. If we are to ensure the
continued trust of Member States, impacted communities and the broader
public in international criminal justice institutions as effective mechanisms
for the delivery of criminal accountability, we must renew our commitment
to placing the principle of integrity at the centre of our work and ensure a
comprehensive approach is adopted with respect to its implementation. As
confidence in the administration of justice wanes, and as the utility of the
international rules-based system comes under pressure, a concerted focus
on upholding the highest possible standards of integrity, efficiency and im-
partiality has never been more needed.
At a time when common standards and the idea of justice itself can
often seem in peril, in an environment where it is sometimes fallaciously
alleged that there is no truth – only competing facts – justice must be
guarded like never before. Integrity must remain the sentry on guard.

21
______
The Wider Policy Framework of

Ethical Behaviour:
Outspoken Observations from a True Friend of the
International Criminal Court
Cyril Laucci *
21.1. Introduction
In this chapter, I will offer several observations on the relationship between
the legal and policy frameworks of international institutions and integrity.
Before that, however, I would like to compliment the International Nurem-
berg Principles Academy and the Centre for International Law Research
and Policy (‘CILRAP’) for organizing the international conference ‘Integri-
ty in International Justice’ in the Peace Palace in The Hague in December
2018, and for initiating the Integrity Project which has resulted in this
comprehensive anthology. It actually takes courage to address such issues,
which are usually taken for ‘granted without saying’. It requires looking at
integrity in international justice without fear or bias, comparing the way
things are with the way they should be. This is indeed the actual support
international justice needs: the frankness of true friends, instead of the flat-
tery of courtesans. It requires going beyond the complacent fascination and
deference for international justice institutions and their officials, remem-
bering that these institutions are ultimately made up of women and men,
with their own limits, needs and dilemmas, whatever the qualities of such
individuals. It also requires looking deeper into the governance and policy
framework of these organisations to find what, if anything, is going wrong,
instead of entering superfluous judgments as to the alleged poor quality of
their personnel and officials as the sole explanation for their failure to fulfil
their mandate. The best civil servants and officials can do barely better than
the worst ones if a proper policy framework governing their action is miss-
*
Dr. Cyril Laucci was Legal Advisor in the Registry of the International Criminal Court
from 2009 to 2015. He is currently Lead Counsel for Mr. Ali Muhammad Ali Abd-Al-
Rahman before the ICC, Director at The Legal Carpentry, and Project Manager on Strength-
ening Internal Justice Systems at European Molecular Biology Laboratory.

ing. The main difference is that the first priority for good civil servants and
officials in such a case is addressing policy gaps, and promulgating a prop-
er legal framework for their sound action.
Rules alone cannot guarantee integrity. Norms are useful in setting a
standard framework of reference on which individuals can rely to assess
the integrity of a given behaviour. In most cases, rules and policies – when
they exist – provide ready-made answers and guidance for international
civil servants to learn about the integrity that is expected from them. By
itself, compliance with policies will not always be sufficient to lead one
towards integrity and ethical behaviour. Nevertheless, clear guidelines will,
at least, provide a framework within which individual dilemmas can find
ready-made solutions for ethical action. In case of policy gaps, individual
civil servants are left with no such guidance. Hence, the identification of
ethical behaviour essentially relies on individual value judgments. In such a
scenario, those who care about integrity, and are sufficiently enlightened to
identify the right behaviour succeed, while those who lack integrity, or the
capacity to uphold it consistently, fail.
Furthermore, for those who fail, disciplinary action is made more dif-
ficult – if at all possible – in the absence of clearly defined disciplinary
breaches. Nullum crimen sine lege does apply to disciplinary action. 1 Poli-
cy gaps and failures to prevent unethical behaviour are thus impediments to
disciplinary liability and a cause of impunity. In turn, the consequential
perception of impunity plays as a strong deterrent to integrity. Where integ-
rity breaches are protected from disciplinary action, they may facilitate the
career development and promotion of offenders; at the same time, those
who restrain their actions and try to advise adherence to ethical behaviour
in all circumstances are perceived as trouble-makers. Unethical behaviour
generates its own dynamics of solidarity between offenders, and retaliation
against those who refuse to depart from integrity. Naming and shaming
those who err is made difficult by the absence of rule that define and re-
press the phenomenon. It also exposes non-like-minded staff members and
whistle-blowers who care for integrity to retaliation, as easy scapegoats
immolated on the ground of the alleged lack of efficiency resulting from
their willingness to play by rules which, to all effects, do not exist.
1
International Labour Organization Administrative Tribunal (‘ILOAT’), In re Berte and
Beslier, Judgment, 20 December 1983, No. 566, p. 5 (http://www.legal-tools.org/doc/
395956/).

21. The Wider Policy Framework of Ethical Behaviour:
Outspoken Observations from a True Friend of the International Criminal Court
It is generally agreed that a strong policy and legal framework alone

is not an absolute guarantee of integrity in the management of an interna-
tional institution; yet, policy gaps are pitfalls on the road of civil servants
towards integrity and ethical behaviour. Some can avoid these, and main-
tain the clarity of mind to find their way to integrity in all circumstances.
Still, others may fall, and their institution would then have failed to provide
them with the necessary guidance.
21.1.1. Five Examples
Having regard to the Integrity Project, useful reflections may come from
considering an international organization working in the field of interna-
tional justice which recruits and employs hundreds of staff members, often
for years, without a legally promulgated recruitment and selection proce-
dure, discussed in Section 21.3.1. below. Section 21.3.2. describes an or-
ganization which deploys hundreds of staff members and other contractors
on field missions in sensitive, post-conflict environments without any bind-
ing policy on mandatory security requirements or diplomatic clearance. In
Section 21.3.3., this chapter elaborates on an organization without properly
promulgated rules and procedures governing staff appeals and disciplinary
proceedings, and where, by way of consequence, staff appeals and discipli-
nary actions fare quashed, faced by properly grounded appeals by those
who are aware of such normative gaps. I will then consider an organization
which enters a statement of principles combatting fraud and protecting
whistle-blowers, but which fails to promulgate the necessary procedures to
implement these in Section 21.3.4. Finally, Section 21.3.5. looks at an or-
ganization which does not comply, on a daily basis, with its own Infor-
mation Protection Policy and thus fails to protect classified information
regarding its judicial proceedings, the protection of its witnesses, victims
and staff members in accordance with its own legal standards.
Without entering any conclusion with regards to the adherence of
such organizations to the applicable integrity standards, I believe that we
can reasonably conclude that each one of the organizations mentioned
above has not set up the basic policy and legal framework and, as a conse-
quence, fails to provide its staff and officials with the minimal guidance
they should receive in order to uphold integrity standards in each organiza-
tion’s areas of activity.
This reasonable conclusion becomes a matter of serious concern
when the five examples mentioned above are all related to the same organi-

zation, perhaps even more so when such organization is the central body in
international criminal justice: the International Criminal Court (‘ICC’) (see
Section 21.2. below). I am expressing this concern as a true friend of the
ICC, with the genuine wish that the management of the Court may eventu-
ally heed my advice and take the necessary measures to correct the course.
I am sharing this advice with the intent of making sure that, should the
management persist in refusing to react, the concerned individuals risk fac-
ing the criticism arising from not addressing the policy gaps that undermine
the daily action of this important institution, preventing the satisfactory ful-
filment of its mandate of prosecuting the most serious crimes of interna-
tional concern. Two years after making this advice public at the Peace Pal-
ace Conference of December 2018, I can see, with sadness, that it has re-
mained unsuccessful so far: the final report of the Independent Expert Re-
view (‘IER’) delivered on 30 September 2020 still flags “potentially out-
dated administrative issuances or those that are contradictory to principles
set out in decisions of the International Labour Organisation – Administra-
tive Tribunal (ILOAT) against the Court”, and suggests, in its Recommen-
dation R12, that “a systemic process should further be put in place to ena-
ble the Court’s internal legal framework’s compliance with ILOAT deci-
sions, as soon as practicable after such a decision involving the Court is
delivered, to identify and implement any necessary amendments”. 2 This
chapter is written with the genuine hope of saving the ICC from a future
where it may decline by itself, by failing to uphold the highest standards of
integrity, without need for a decisive action of its usual, numerous and
powerful foes.
21.2. Overview of the Structure of the Internal Legal and Policy
Framework of the International Criminal Court
The legal framework of relevance for the topic at hand is not composed by
the usual sources of ICC law: although some articles of the Rome Statute
referred to below are relevant, the other provisions governing the mandate
and judicial proceedings of the Court in the Statute, the Rules of Procedure
and Evidence, and other regulations have no direct relevance.
The combined provisions of Articles 38(3)(a), 42(2) and 43(2) of the
Rome Statute entrust the Registrar, as “principal administrative officer of
2
Independent Expert Review of the International Criminal Court and the Rome Statute Sys-
tem: Final Report, 30 September 2020, para. 59 and Recommendation R12, pp. 22–23 (‘IER
Report’) (https://www.legal-tools.org/doc/cv19d5).

the Court” exercising his or her functions under the authority of the Presi-
dent of the Court and the Presidency, in charge of its “proper administra-
tion, with the exception of the Office of the Prosecutor”, with the main re-
sponsibility of establishing the machinery governing the daily administra-
tion of the Court.
On the basis of these combined provisions, the ICC Presidency is-
sued, on 9 December 2003, the first ever Presidential Directive of the Court
setting up the “Procedures for the Promulgation of Administrative Issuanc-
es”. 3 Section 1.1 of this Presidential Directive defines the various types of
administrative issuances that can be issued by the Court: (a) Presidential
Directives; (b) Administrative Instructions; and (c) Information Circulars.
The list is limitative. Sections 2−4 define the scope of each type of issu-
ances, their hierarchy, and the authority entrusted with their promulgation.
Sections 5 and 6 set up the procedure for the consultation, promulgation,
publication and review of administrative issuances. Section 7 provides
general guidelines for their interpretation. The Presidential Directive of 9
December 2003 thus plays a preeminent, quasi-constitutional role of organ-
ic law (in French, loi organique), immediately under the Rome Statute,
next to the Staff Regulations adopted under Article 44(3) of the Statute, and
at the very top of the administrative and policy framework of the Court. All
subsequent administrative issuances, more than one hundred, 4 were prom-
ulgated in accordance with this Presidential Directive.
21.2.1. Instances of Non-Observance of the Terms of the Presidential
Directive of 2003
A quick review of the corpus of ICC administrative issuances reveals that,
though promulgated pursuant to Presidential Directive of 9 December 2003,
they were not necessarily compliant with its provisions. Since the delivery
of the author’s speech at the Peace Palace Conference of December 2018,
the Court has fortunately taken action and redressed some of these issues,
as mentioned in the relevant footnotes below.
3
International Criminal Court (‘ICC’), Procedures for the Promulgation of Administrative
Issuances, 9 December 2003, ICC/PRESD/G/2003/001 (http://www.legal-tools.org/doc/
6a92e0/).
4
ICC, “Administrative Issuances” (available on its web site). The full list – unfortunately not
up to date – of ICC administrative issuances.

21.2.1.1. Administrative Issuances Outside the Exhaustive List

First, many administrative issuances have been promulgated by instruments
which do not form part of the exhaustive list of administrative issuances
under Section 1.1 of the Presidential Directive of 9 December 2003. For
example, the “ICC Recruitment Guidelines for Established Posts” of 2 No-
vember 2009, which govern the selection and recruitment of staff mem-
bers 5 (see Section 21.3.1. below); the “Guidelines on Special Post Allow-
ances” of 1 August 2007; 6 and the document published under the reference
ICC/HRS/2007/7229 governing Official Working Hours of the Court and
Official Holidays of 1 June 2007. 7 Although the latter document bears the
label ‘Information Circular’ on its first page, it was not promulgated and is
not published as such.
21.2.1.2. Administrative Issuances Adopted Outside of Their Given
Scope
There have been several instances of administrative issuances adopted ex-
ceeding the scope of the specific instruments used for their promulgation,
as defined under Sections 2 to 4 of the Presidential Directive of 9 Decem-
ber 2003. Such issuances include general procedures promulgated by way
of Information Circulars, whereas a Presidential Directive or an Adminis-
trative Instruction would have been required under Sections 2 or 3 of the
Presidential Directive of 9 December 2003. For instance, the “Rules of
Procedure of the Appeals Board” promulgated by Information Circular
ICC/INF/2006/003 of 21 March 2006 8 (see Section 21.3.3. below); the
“Guidelines on Staff Training and Development” promulgated by Infor-
mation Circular ICC/INF/2006/009 of 27 March 2006; 9 the “Rules of Pro-
5
ICC, Recruitment guidelines for Established Posts, Professional and higher General Service
categories, 2 November 2009 (http://www.legal-tools.org/doc/50ed6b/) (not fixed).
6
ICC, Guidelines on Special Post Allowances (SPA), 1 August 2007, ICC/HRS/2007/7385
(http://www.legal-tools.org/doc/018904/) (not fixed).
7
ICC, Official Working Hours of the Court and Official Holidays, 1 June 2007,
ICC/HRS/2007/7229 (http://www.legal-tools.org/doc/471713/) (partially fixed by
ICC/AI/2019/004, 28 October 2019 (https://www.legal-tools.org/doc/asnyvr/)).
8
ICC, Rules of Procedure of the Appeals Board, 21 March 2006, ICC/INF/2006/003 (http://
www.legal-tools.org/doc/fb03b5/) (fixed by ICC/AI/2019/005, 28 October 2019 (https://
www.legal-tools.org/doc/2ekgxu/)).
9
ICC, Staff Training and Development – Guidelines, 27 March 2006, ICC/INF/2006/009
(‘Staff Training and Development – Guidelines’) (http://www.legal-tools.org/doc/317ad3/)
(not fixed).

cedure of the Disciplinary Advisory Board” promulgated by Information

Circular ICC/INF/2007/003 of 7 May 2007 10 (see Section 21.3.3. below);
the setting up of the ICC Security and Safety Section, and various inter-
organ fora created for the purpose of ensuring security at the Court and re-
sponding to crisis, promulgated by Information Circular ICC/INF/2008/003
of 22 January 2008 11 (see Section 21.3.2. below); “Mandatory Security Ar-
rangements” for ICC field missions promulgated by Information Circular
ICC/INF/2011/006 of 23 August 2011 12 (see Section 21.3.2. below); the
procedure governing the delivery of “UN Laissez-Passer” for ICC missions
promulgated by Information Circular ICC/INF/2015/008 of 19 March
2015 13 (see Section 21.3.2. below); and the “Guidelines on Language Pro-
ficiency and Language Incentives” promulgated by Information Circular
ICC/INF/2016/011 of 30 December 2016. 14
21.2.1.3. Other Instances of Flawed Administrative Issuances
The practice of the Court has brought other kinds of problematic adminis-
trative instances, such as those that are manifestly obsolete which were not
reviewed, as required under Section 5.2 of the Presidential Directive of 9
December 2003: for example, the “ICC Information Protection Policy”
promulgated by Administrative Instruction ICC/AI/2007/001 of 19 June
2007 15 (see Section 21.3.5. below).
Other administrative issuances refer to subsequent, subordinate in-
struments for the implementation of the general principles they provide,
10
ICC, Rules of Procedure of the Disciplinary Advisory Board, 7 May 2007,
ICC/INF/2007/003 (‘Rules of Procedure of the Disciplinary Advisory Board’) (http://
www.legal-tools.org/doc/c7e8f0/) (fixed by ICC/AI/2019/006, 28 October 2019 (https://
www.legal-tools.org/doc/43ztuk/)).
11
ICC, An executive statement by the Registrar on the ICC Security and Safety Section (SSS),
Joint Threat and Assessment Group (JTAG), Joint Crisis Management Team (JCMT) and In-
formation Security Management Forum (ISMF), 22 January 2008, ICC/INF/2008/003 (‘Ex-
ecutive Statement’) (http://www.legal-tools.org/doc/278a95/) (not fixed).
12
ICC, Mandatory Security Arrangements, 23 August 2011, ICC/lNF/2011/006 (‘Mandatory
Security Arrangements’) (http://www.legal-tools.org/doc/676299/) (not fixed).
13
ICC, United Nations Laissez-Passer, 19 March 2015, ICC/INF/2015/008 (‘United Nations
Laissez-Passer’) (http://www.legal-tools.org/doc/9a62af/) (not fixed).
14
ICC, Guidelines on Language Proficiency and Language Incentives, 30 December 2016,
ICC/INF/2016/011 (http://www.legal-tools.org/doc/ee42ad/) (fixed by ICC/AI/2019/007, 28
October 2019 (https://www.legal-tools.org/doc/sxt7ql/)).
15
ICC, ICC Informational Protection Policy, 19 June 2007, ICC/AI/2007/001 (http://
www.legal-tools.org/doc/04b126/) (not fixed).

which were not followed by the announced implementing issuances: for

instance, the “ICC Anti-Fraud Policy” promulgated by Presidential Di-
rective ICC/PRESD/G/2014/002 of 13 May 2014 (see Section 21.3.4. be-
low); 16 and the “ICC Whistleblowing and Whistle-blower Protection Poli-
cy” promulgated by Presidential Directive ICC/PRESD/G/2014/003 of 8
October 2014 (see Section 21.3.4. below). 17
21.2.2. The Rank of the Presidential Directive of 2003
Until recently, the frequent non-observance of the Presidential Directive of
9 December 2003 had led to a perception, widely shared within the Court,
that the Directive may not necessarily be binding. Indeed, in this light, the
Presidential Directive may be seen to represent an early and long-time gone
era of the ICC development when all important decisions could be
achieved in agreement between the various organs of the Court, and should
be considered as guidelines rather than as a compulsory instrument.
Though legally questionable, this perception was rarely challenged and had
not led to a judicial determination until 24 January 2018.
On 24 January 2018, the Administrative Tribunal of the International
Labour Organization (‘ILOAT’), which is the ultimate body of appeal in
ICC staff appeal and disciplinary cases pursuant to Regulation 11.2 of the
ICC Staff Regulations 18 and Section 6.4 of Administrative Instruction ICC/
AI/2008/001 of 5 February 2008, 19 issued its Judgment No. 3907. 20 In this
Judgment, the ILOAT quashes an administrative decision and heavily sanc-
tions the ICC as a result of its non-observance of the Presidential Directive
of 9 December 2003 in the promulgation of another administrative issuance.
Importantly, the ILOAT rules:
In conclusion, pursuant to the Presidential Directive [of 9 De-
cember 2003], the Principles and Procedures should have been
16
ICC, ICC Anti-Fraud Policy, 13 May 2014, ICC/PRESD/G/2014/002 (‘ICC Anti-Fraud Pol-
icy’) (http://www.legal-tools.org/doc/a5168a/) (not fixed).
17
ICC, ICC Whistleblowing and Whistleblower Protection Policy, 8 October 2014,
ICC/PRESD/G/2014/003 (‘ICC Whistleblowing and Whistleblower Protection Policy’)
(http://www.legal-tools.org/doc/0c36ff/) (not fixed).
18
ICC, Staff Regulations, 30 September 2016, ICC/PRESD/G/2016/002 (‘ICC Staff Regula-
tions’) (http://www.legal-tools.org/doc/bc0ddb/).
19
ICC, Disciplinary Procedure, 5 February 2008, ICC/AI/2008/001 (‘Disciplinary Procedure’)
(http://www.legal-tools.org/doc/094a22/).
20
ILOAT, F v. ICC, Judgment, 24 January 2018, No. 3907 (http://www.legal-tools.org/doc/
c1fdba/).

promulgated by an Administrative Instruction or, arguably, by

a Presidential Directive. As the promulgation of the Principles
and Procedures by Information Circular was in violation of
the Presidential Directive, they were without legal foundation
and are, therefore, unlawful as are the decisions taken pursu-
ant to the Principles and Procedures. 21
The ILOAT ruling should have dissipated any doubt as to the com-
pulsory nature of the Presidential Directive of 9 December 2003. The
ILOAT confirms that not only this Presidential Directive is preeminent in
the policy framework of the ICC and compulsory, but its non-observance in
the promulgation of other administrative issuances is a cause of unlawful-
ness of the ill-promulgated provisions, and of all administrative decisions
taken on their basis. The organ promulgating an administrative issuance in
violation of the Presidential Directive of 9 December 2003 – be it the Pres-
ident, the Prosecutor or the Registrar – is found to have no authority to
overcome this primary illegality by way of exercising its own policy attrib-
utions.
In light of the abovementioned long, yet non-exhaustive, list of in-
stances of non-observance of the Presidential Directive of 9 December
2003 in the promulgation of administrative issuances, ILOAT Judgment No.
3907 had very significant consequences on the internal legal framework of
the ICC. Potentially, each and every administrative issuance not in compli-
ance with the terms of the Presidential Directive – such as, for instance, the
ICC Recruitment Guidelines for Established Posts – may be challenged;
furthermore, each and every decision taken on the basis of such issuances,
like the appointment of staff members, may be quashed. This is a cause of
high insecurity for the Court, which cannot safely rely on substantial as-
pects of its own internal legal framework in support of its day-to-day ad-
ministrative decisions. As a consequence of the ILOAT ruling, there is now
a potential for litigation every time an administrative decision perceived as
adverse is taken on the basis of one of the administrative issuances listed
above. To some extent, this is also a cause of legal insecurity for ICC staff
21
Ibid., p. 26; ILOAT, A v. ICÇ Judgment, 24 January 2018, No. 3903, p. 20 (http://
www.legal-tools.org/doc/b3ed30/); ILOAT, G v. ICC, Judgment, 24 January 2018, No. 3904,
p. 20 (http://www.legal-tools.org/doc/06301a/); ILOAT, L. (No. 3) v. ICC, Judgment, 24 Jan-
uary 2018, No. 3908, p. 9 (http://www.legal-tools.org/doc/619e5a/); ILOAT, B. v. ICÇ
Judgment, 26 June 2018, No. 4004, p. 6 (http://www.legal-tools.org/doc/dca542/); ILOAT,
T.P. and M. v. ICC, Judgment, 26 June 2018, No. 4007, p. 5 (http://www.legal-tools.org/doc/
bcf9cb/).

members, even though they can nonetheless rely on unlawfully promulgat-

ed administrative issuances in support of their claimed acquired rights on
the basis of the tu patere legem quam ipse fecisti principle: the organization
is bound to comply with the rules it has itself defined in favour of its staff,
even if these are found unlawful. Strikingly, ICC staff members are in a
much more favourable position than the Court itself, since they can, in
support of their rights, rely on provisions which the Court cannot rely upon
any longer in support of its decisions.
ILOAT Judgment No. 3907 clarifies that the Court cannot anymore
consider its Presidential Directive of 9 December 2003 as mere guidance
and disregard its provisions in the preparation, promulgation and imple-
mentation of administrative issuances. It should have led the Court to con-
duct, on an urgent basis, a comprehensive review of its policy framework
in order to abide by the provisions of its Presidential Directive of 9 De-
cember 2003, and particularly its Section 5.2 which requires that
officials responsible for promulgating administrative issuanc-
es shall see to it that issuances in effect within their respective
spheres of competence are reviewed periodically so as to en-
sure that the rules, instructions and procedures that they pre-
scribe are up to date, that obsolete administrative issuances are
abolished with the minimum delay and that new issuances or
amendments to existing issuances are promulgated as required.
Almost three years after the issuance of ILOAT Judgment No. 3907,
no such review has taken place, despite all efforts made to raise the atten-
tion of the high management of the Court on the urgency of the review. Let
us hope that the above-mentioned IER Recommendation R12 will have the
power to trigger it.
21.3. Main Areas of Policy Gaps and Their Potential Impact on the
Perception of Integrity at the ICC
As stated in the introduction to the present chapter, policy gaps, when they
are not addressed, leave the organization’s staff members and officials with
no guidance as to the way of upholding the highest standards of integrity,
and have the potential impact of feeding a perception of impunity for un-
ethical behaviour, which in turn deters strict adherence to integrity stand-
ards.

21.3.1. Selection of Staff Members

There is no legally promulgated administrative issuance governing the se-
lection and recruitment of staff members at the ICC. On 2 November 2009,
the Registrar of the ICC informally promulgated “Recruitment Guidelines
for Established Posts – Professional and higher and General Service cate-
gories”. 22 Under Section 1, these Guidelines govern the procedures for the
recruitment of staff members on established posts and positions funded by
general temporary assistance. They provide rules and procedures regarding
the advertisement of vacancy announcements, the classification of posts,
the submission of applications, the composition of interview panels, the
short-listing, assessment and final selection of candidates and the use of
rosters. Unfortunately, the Court failed to resort to one or the other kind of
administrative issuances listed in Section 1.1 of the Presidential Directive
of 9 December 2003. As a consequence, and in light of ILOAT Judgment
No. 3907, these Recruitment Guidelines were promulgated in violation of
the Presidential Directive of 9 December 2003, they are without legal
foundation and are, therefore, unlawful, as are all the administrative deci-
sions taken on the basis of these guidelines, that is, each and every recruit-
ment procedure which applied the Recruitment Guidelines.
This does not mean that each and every staff member working at the
Court was unlawfully hired and shall see his or her appointment cancelled.
Though unlawful, the individual administrative decisions appointing staff
members created acquired rights for the incumbents, and most of them
were not appealed. These acquired rights cannot be challenged on the basis
of the unlawfulness of the individual administrative decisions originating
them. Except in the few cases where recruitment decisions are appealed,
such decisions cannot be quashed or cancelled. In the rare appeals, for ex-
ample, by other unsuccessful applicants, reliance on the unlawfulness of
the Recruitment Guidelines on the basis of ILOAT Judgment No. 3907
provides a solid ground for the quashing of the impugned decisions and the
cancellation of the challenged recruitment processes. This situation is obvi-
ously a factor of high vulnerability for the Court, whose recruitment pro-
cesses – virtually all of them − can be successfully challenged.
22
ICC, ICC Recruitment guidelines for Established Posts, Professional and higher General
Service categories, 2 November 2009, ICC/INF/2012/020 (https://legal-tools.org/doc/
50ed6b).

However, this risk is limited by the fact that the right to challenge re-
cruitment decisions, like any other administrative decisions, is limited to
staff members who are already working for the Court under Article II.1 of
the ILOAT Statute and is not open to external applicants. Only internal ap-
plicants can challenge a recruitment process and, except in rare situations,
internal applicants will refrain from challenging such a decision by fear of
retaliation or other adverse consequences for their career within the Court.
The non-implementation of the principles governing the protection of whis-
tle-blowers (see Section 21.3.4. below) thus plays as a powerful deterrent
against the lodging of appeals against appointment decisions. Finally, the
absence of reaction from the management of the Court and of review of the
Recruitment Guidelines after the issuance of Judgment No. 3907 feeds the
perception that, notwithstanding the clear and unambiguous ruling of the
ILOAT, the Recruitment Guidelines may nonetheless be valid, for whatever
reason, in the mind of the majority of staff members, who are not suffi-
ciently acquainted with administrative subtleties. All these mitigating fac-
tors concur in limiting the risk of challenges against recruitment decisions
and containing it, below the advantages of keeping things as they are. As
long as a binding and properly promulgated selection and recruitment pro-
cedure is not in force, the hiring manager has the possibility of disregarding
the existing Recruitment Guidelines every time they do not serve his or her
purposes or those of the Human Resources Section.
Paradoxically, the procedure governing the selection and recruitment
of the most precarious category of staff members, employed under short-
term appointments, was properly promulgated by way of Administrative
Instruction ICC/AI/2016/001 of 28 January 2016. 23 Section 4 of that Ad-
ministrative Instruction governs the advertisement of vacancy announce-
ments and provides relaxed selection and appointment processes, ensuring
full discretion to the hiring manager in the selection of staff on short-term
appointments. This Administrative Instruction shows a contrario that the
ICC management is aware of the proper way of promulgating recruitment
procedures, and that nonetheless, when it does so, it only promulgates
loose provisions, ultimately preserving the capacity of hiring managers to
select and appoint the persons of their choosing.
23
ICC, Short-Term Appointments, 28 January 2016, ICC/AI/2016/001 (http://www.legal-
tools.org/doc/286b48/).

The legal possibility of disregarding the Recruitment Guidelines

opens the door to all possible allegations of discrimination, favouritism,
nepotism, blacklisting, or other unethical behaviour in relation to recruit-
ments for established posts in the ICC. It provides an explanation as to why
subsequent internal staff surveys show that ICC staff members have a low
level of confidence in the fairness of recruitment processes, and questions
the very capacity of the Court to select, appoint and keep at its service the
most qualified staff members, as required under Article 44 of the Rome
Statute. In its final report, the IER notes the symptoms, but fails to identify
the cause: none of its essentially cosmetic Recommendations R91 to R96
on recruitment addresses the lack of properly promulgated and enforceable
selection and recruitment procedure. 24 The failure to address this key issue
by the IER is a missed opportunity to create a sound policy basis for the
hiring of ICC staff fulfilling basic standards of integrity.
21.3.2. Field Operations
Among the more than one hundred administrative issuances of the ICC, a
very few are related to field operations and missions.
Appendix 1 to Information Circular ICC/INF/2008/003 of 22 January
25
2008 provides in Section 3 – ‘Field Security’ that the Registry Security
and Safety Section (‘SSS’) is in charge of completing Security Risk As-
sessments and planning co-ordination for the deployment of all security
staff – only! – in the field, assessing risks and planning security missions,
acting as a focal point to obtain security clearance for ICC staff travelling
on mission to ensure compliance with the Court’s obligations arising from
membership of the UN security management system, liaising with other
organizations – like the UN Department of Safety and Security (‘UNDSS’)
and Department of Peace Keeping Operations – monitoring all mission-
related security reports and incidents, identifying security shortfalls and
highlighting required remedial actions, and leading and managing the SSS
personnel in the field. The Information Circular of 22 January 2008 further
establishes various internal bodies in charge of coordinating on security
issues: the ‘ICC Joint Threat Assessment Group’, the ‘ICC Joint Crisis
Management Team’ and the ‘ICC Information Security Management Fo-
rum’. The composition, functioning and responsibilities for each body are
24
IER Report, paras. 218–227 and Recommendations R91 to R96, pp. 70–74, see above note 2.
25
Executive Statement, see above note 11.

detailed in Appendices II, III and IV of the Information Circular of 22 Jan-

uary 2008, respectively.
Information Circular ICC/INF/2011/006 of 23 August 2011, 26 on the
other hand, provides some ‘Mandatory Security Arrangements’. These in-
clude attendance of security briefings delivered by SSS or UNDSS person-
nel, the completion of basic and advanced security training prior to de-
ployment on field missions, the delivery of security clearance from
UNDSS, the timely submission of a mission plan “at least 30 days prior to
travel” and of a “detailed mission plan” (not defined) “at least 14 days prior
to travel”. The Information Circular of 23 August 2011 specifies that “the
compliance with the mandatory security arrangements is also taken into
consideration in case of investigation of an incident and may impact insur-
ance coverage and other related compensation”.
Information Circular ICC/INF/2015/008 of 19 March 2015 27 pro-
vides the procedure for the delivery of a UN Laissez-Passer (UNLP). An
earlier version of the same issuance was promulgated by Information Cir-
cular ICC/INF/2005/005 of 22 August 2005 28 and superseded by the In-
formation Circular of 19 March 2015.
However, these three key issuances governing field operations are
unenforceable because they were, once again, illegally promulgated and are
largely obsolete: most of the time, they are not complied with.
The three Information Circulars of 22 January 2008, 23 August 2011
and 19 March 2015 promulgate general procedures of a permanent nature.
As such, these shall have been promulgated by way of a Presidential Di-
rective or an Administrative Instruction pursuant to Sections 2 and 3 of the
Presidential Directive of 9 December 2003. Since the issuance of ILOAT
Judgment No. 3907 of 24 January 2018, the unlawfulness of these adminis-
trative issuances and all administrative decisions taken pursuant to these is
res judicata. Yet, the management of the Court is not taking steps to ad-
dress this issue.
From 6 June to 2 July 2012, four ICC staff members were illegally
arrested and detained in Zintan, Libya, while on a mission for the Court. In
response to the arrest of its four staff members, the ICC Joint Crisis Man-
26
Mandatory Security Arrangements, see above note 12.
27
United Nations Laissez-Passer, see above note 13.
28
ICC, Guidelines for the use of the United Nations Laissez Passer, 22 August 2005,
ICC/INF/2005/005 (http://www.legal-tools.org/doc/5ac2df/).

agement Committee, established by the Information Circular of 22 January

2008 to respond to this specific type of crisis, was not even activated. The
release of the four ICC staff members was followed by two post-incident
reports, and a Judgment issued by the ILOAT on 26 June 2018 upon a
claim from one of the four arrested ICC staff members. The first post-
incident report, issued by the ICC Independent Oversight Mechanism
(‘IOM’) in October 2012, finds that there were significant gaps in the
ICC’s mission planning framework: no agreement had been entered with
the Libyan authorities concerning the privileges and immunities of the ICC
staff members; the activities that the ICC staff members intended to pursue
during their mission had not been defined in advance by means of an ex-
change of Notes Verbales; the security recommendations made by the ICC
Field Security Unit during the preparation of the mission had not been im-
plemented. 29 A revised version of this first post-incident report dated 21
February 2013 further concludes that
both in preparing the mission and attempting to resolve the
crisis, the Court was greatly hindered by a poor guidance
framework and absence of advanced planning. By taking ac-
tion, in both areas, to strengthen the Court’s system, the Court
can hopefully avoid future similar crises and, when crisis is
unavoidable, be able to react more robustly. 30
The second post-incident report, issued on 3 June 2013 by an exter-
nal expert tasked by the ICC, also found that there had been a lack of ade-
quate preparation for the mission to Libya. 31 In its Judgment No. 4003 of
24 June 2018, the ILOAT finds that
the Complainant’s ordeal in Libya was a direct result of the
ICC’s failure to properly prepare for the mission, specifically
its failure to: (a) establish a diplomatic basis by ensuring that a
Memorandum of Understanding was established and/or Notes
Verbales were exchanged with the Libyan authorities prior to
the mission’s initiation; (b) establish a mission plan which
identified the objectives of the mission, the locations to visit
and persons to be met, as well as naming the Head of Mission
and clarifying the specific responsibilities of the team mem-
bers; and (c) ensure that all security protocols were followed
29
ILOAT, A v. ICC, Judgment, 26 June 2018, No. 4003, pp. 2–3 (‘Judgment 4003’) (http://
www.legal-tools.org/doc/81bbe3/).
30
Ibid., para. 4.
31
Ibid., para. 5.

and advice was implemented to guarantee the safety and secu-

rity of the staff members on mission. 32
After the occurrence of such a serious event as the Zintan crisis of
2012, no step was taken to strengthen the policy regarding field missions
and activities, privileges and immunities and compliance with field security
rules. The findings and recommendations made in the two post-incident
reports were not implemented. The rulings of the ILOAT in Judgment No.
4003 did not lead to significant change in the mission preparation, mission
planning, privileges and immunities and field security policies of the Court.
The most significant actions taken by the ICC management in rela-
tion to field operations and security since the Zintan crisis of 2012 and the
issuance of the post-incident reports consist in a restructuring of the ICC
Security and Safety Section, done as part of a wider restructuring of the
ICC Registry services in 2014-2015, and the promulgation of the Infor-
mation Circular of 19 March 2015 on UN Laissez-Passer, replacing the ear-
lier Information Circular of 22 August 2005.
The restructuring of the ICC Security and Safety Section essentially
consisted in separating the field security, security analysis, crisis manage-
ment and mission planning functions from the SSS, and entrusting them to
a new Division of External Operations, 33 distributed between a new Exter-
nal Operations Support Section 34 and each individual Field Office. This
change was implemented without amending or updating the Information
Circular of 22 January 2008 entrusting the Security and Safety Section with
these important functions to adapt it to the new structure and redistribution
of functions. The Information Circular of 22 January 2008, already not
complied with at the time of the Zintan crisis, has now become totally ob-
solete as a result of the restructuration of the Registry security and field
management services. The failure to review or abolish the Information Cir-
cular of 22 January 2008 is in further breach of Section 5.2 of the Presiden-
tial Directive of 9 December 2003. One may also legitimately question
how a restructuring that dilutes security and mission planning functions
and responsibilities between, at least, three different working units instead
of one without amending the applicable legal and policy framework may
32
Ibid., para. 16.
33
ICC, Comprehensive Report on the Reorganisation of the Registry of the International
Criminal Court, August 2016, para. 325 (http://www.legal-tools.org/doc/cbc6cc/).
34
Ibid., paras. 428, 447-448, 552.

have contributed to address and fix the policy concerns raised in the two
subsequent post-incidents reports on the Zintan crisis.
As already mentioned, the Information Circular of 19 March 2015 on
UN Laissez-Passer is unlawful and unenforceable as a result of its promul-
gation, in breach of the Presidential Directive of 9 December 2003. In addi-
tion, it provides that UN Laissez-Passer delivered to ICC staff and officials
shall contain an insert affirming that its bearer “is entitled to be accorded
the privileges and immunities provided for in the Agreement on the Privi-
leges and Immunities of the International Criminal Court of 9 September
2002 or in other agreements or arrangements defining the privileges and
immunities of the Court”. The Information Circular of 19 March 2015 fails
to inform potential bearers of the Laissez-Passer on the implications and
limits of these privileges and immunities, in particular the need for an ex-
change of Notes Verbales with the local authorities and the fact that the
ICC privileges and immunities only apply in States Parties to the Agree-
ment on the Privileges and Immunities of the Court. Many current Situa-
tion countries are not Parties to the Agreement, like Côte d’Ivoire, Kenya,
Sudan, Libya and Burundi, and ICC bearers of Laissez-Passer may also
travel to other non-situation countries which also are not Parties to the
Agreement on the Privileges and Immunities of the Court, such as the fol-
lowing countries under preliminary examination: Afghanistan, Bangladesh,
Myanmar, Guinea (which signed the Agreement on 1 April 2004 but did
not ratify it), Iraq, Nigeria, Palestine, Philippines or Venezuela (which
signed on 16 July 2003 but did not ratify). By providing an insert that af-
firms that ICC bearers of Laissez-Passer enjoy privileges and immunities
without the necessary information and caveats, the Information Circular of
19 March 2015 fails to discharge the Court’s duty of care 35 vis-à-vis its
staff and officials who may believe, on the face of the insert in their UN
Laissez-Passer, that they enjoy privileges and immunities when they do not.
The failure to secure the privileges and immunities of the four ICC staff
members played a central role in the materialization of the Zintan crisis of
2012, and resulted in the adverse Judgment No. 4003 issued by the ILOAT;
nevertheless, it has not led the Court to learn from its past mistakes and
address this issue properly. The fact that the Information Circular of 19
March 2015 was issued after the Zintan crisis and the issuance of the two
post-incident reports highlighting this policy gap certainly plays as a factor
35
Judgment 4003, p. 12, see above note 29.

aggravating the liability of the ICC management for its failure to discharge
the duty of care.
The ICC policy on mission preparation, diplomatic clearance, privi-
leges and immunities and mandatory security arrangements remains loose,
largely obsolete and noncompliant with the structure of the internal legal
framework of the Court. At any moment in time, an event similar to the
Zintan crisis of 2012 can re-occur, perhaps leading to a much worse result.
The management of the Court is taking a huge responsibility vis-à-vis the
life and security of its own staff and all other persons sent on ICC field
missions, such as counsel, by persisting in not addressing this problem in
spite of the res judicata rulings of the ILOAT in its Judgments Nos. 3907
and 4003. The IER report does not suggest otherwise in its above-
mentioned Recommendation R12, but it strangely addresses the specific
issue of field activities with respect to the Office of the Prosecutor only and
succinctly, 36 without considering the wider picture of the ICC-wide policy
framework governing field presence and the preparation of field missions.
Like for recruitment, the IER report thus missed the main problem here.
In light of the huge risk that follows the failure to review the ICC
field operations policies, one can legitimately wonder the reasons of the
ICC management for not addressing this serious issue, whereas its attention
was repeatedly drawn thereon. Their inaction feeds a perception that the
field operations policy framework is deliberately left as it is in order to
keep the greater flexibility in the conduct of field operations that a loose
legal environment provides. As long as a more stringent policy framework
is not in place, ICC staff members can be sent on missions without the need
for ensuring in advance that they are covered by privileges and immunities,
or to disclose in advance a detailed mission plan defining the exact purpose
of the mission, the foreseen activities and the locations to be visited. This
gives room to maximum flexibility in the conduct of missions, with last-
minute changes always possible. It echoes the concerns voiced in a recent
CILRAP conference on 22-23 February 2019 by a Senior Legal Officer of
the ICC Chambers about the serious challenges encountered by the Office
of the Prosecutor in planning investigations in advance. 37 It also opens the
36
IER Report, paras. 779–784 and Recommendations R293 to R298, pp. 251–253, see above
note 2.
37
Gilbert Bitti, “Quality control in Case Preparation and the Role of the Judiciary of the Inter-
national Criminal Court”, CILRAP Film, New Delhi, 23 February 2019 (https://
www.cilrap.org/cilrap-film/190223-bitti/).

door to all possible allegations of unethical behaviour, such as the under-

taking of unofficial, parallel, non-transparent business while on a mission.
Flexibility on field missions may arguably be in the interests of the
Court, but it can no longer be considered as such once, as with the Zintan
crisis of 2012, it has proved to be at the cost of the security of ICC staff
members and other persons at risk on account of the activities of the Court.
21.3.3. Staff Appeal and Disciplinary Procedures, Including the
Independent Oversight Mechanism
The provisions governing staff appeal and disciplinary procedures before
the ICC include general principles enshrined in Articles X and XI of the
ICC Staff Regulations, 38 and Chapters X and XI of the ICC Staff Rules, 39 a
description of the internal disciplinary procedure in Administrative Instruc-
tion ICC/AI/2008/001 of 5 February 2008, 40 rules of procedures applicable
before the internal Appeals Board and Disciplinary Advisory Board prom-
ulgated by Information Circulars ICC/INF/2006/003 of 27 March 2006 41
and ICC/INF/2007/003 of 7 May 2007, 42 and specific grievance complaint
procedures for cases of harassment and unequal treatment, including dis-
crimination provided under Sections 6-7 of Administrative Instruction ICC/
AI/2005/005 of 14 July 2005 43 and Sections 5-6 of Administrative Instruc-
tion ICC/AI/2005/006 of 14 July 2005. 44 On 27 November 2013, the As-
sembly of States Parties (‘ASP’) also adopted its resolution ICC-ASP/12/
Res. 6 with the Operational Mandate of the IOM established under Article
112(4) of the Rome Statute in an annex. 45 The Operational Mandate of the
38
ICC Staff Regulations, see above note 18.
39
ICC, Staff Rules of the International Criminal Court, 27 July 2015, ICC/AI/2015/004/Corr.1
Anx (http://www.legal-tools.org/doc/2a5274/).
40
Disciplinary Procedure, see above note 19.
41
Rules of Procedure of the Appeals Board, see above note 9; replaced by ICC/AI/2019/005,
28 October 2019.
42
Rules of Procedure of the Disciplinary Advisory Board, see above note 10; replaced by
ICC/AI/2019/006, 28 October 2019.
43
ICC, Sexual and Other Forms of Harassment, 14 July 2005, ICC/AI/2005/005 (http://
www.legal-tools.org/doc/619941/).
44
ICC, Equal Employment Opportunity and Treatment, 14 July 2005, ICC/AI/2005/006
(http://www.legal-tools.org/doc/9c4023/).
45
ICC Assembly of State Parties (‘ICC ASP’), “Independent Oversight Mechanism”, 27 No-
vember 2013, ICC-ASP/12/Res.6 (http://www.legal-tools.org/doc/64ebeb/).

IOM provides, inter alia, that it plays a role in the investigation of discipli-
nary cases against staff members and elected officials.
Though apparently complete, the procedural framework applicable to
staff appeals and disciplinary cases actually maintains significant gaps,
which are likely to impact on the integrity of internal proceedings, should
litigants elect to rely on them in support of their claims, thus making the
Court highly vulnerable in case of appeal before the ILOAT.
Chapter XI of the ICC Staff Rules makes the submission of appeal
cases to the internal Appeals Board a mandatory step in the internal phase
of the proceedings on any staff appeal against an administrative decision.
Rule 111.3 provides general principles governing the procedure before the
Appeals Board. However, the Rules of Procedure of the Appeals Board
govern the more detailed aspects of the procedure before the Appeals
Board, such as the composition of Appeals Board panels, the recusal of its
members, the filing, format and content of submissions, the disclosure of
relevant documents, the drafting and content of the Panel’s recommenda-
tion and other aspects. Yet, the Rules of Procedure were initially promul-
gated as an annex to Information Circular ICC/INF/2006/003 of 27 March
2006, whereas Sections 2 and 3 of the Presidential Directive of 9 December
2003 required the promulgation of general procedures by way of Presiden-
tial Directive or Administrative Instruction. This was fixed by the promul-
gation of Administrative Issuance ICC/AI/2019/005 on 28 October 2019.
Until that date, pursuant to the ruling of the ILOAT at paragraph 25 of its
Judgment No. 3907, the Rules of Procedure of the Appeals Board were un-
lawful, as were all decisions taken pursuant to them, that is, all final deci-
sions on staff appeal cases. The invalid promulgation of the Rules of Pro-
cedure of the Appeals Board thus formed a solid basis for the quashing of
any final decision on a staff appeal case before the ILOAT. This made the
ICC highly vulnerable to any challenge made by its staff members against
its administrative decisions, whatever their merits. In the case of the major-
ity of staff members who were not aware of this gap, or who did not feel
confident enough to challenge the validity of the Rules of Procedure of the
Appeals Board, this risk remained limited. On the contrary, those staff
members who had this knowledge, and had enough confidence in their le-
gal skills to measure the consequences of the unlawfulness of the Rules of
the Appeals Board, could be confident that they would succeed in their ap-
peal against any decision they may have elected to challenge.

Chapter X of the ICC Staff Rules and Section 3 of the Administrative

Instruction of 5 February 2008 provide that the referral of disciplinary cas-
es to the Disciplinary Advisory Board is a mandatory step in the internal
phase of disciplinary proceedings against ICC staff members. The same
requirement applies to grievance procedures for harassment and unequal
treatment, including discrimination, pursuant to Section 7.3 of Administra-
tive Instruction ICC/AI/2005/005 of 14 July 2005 and Section 6.3 of Ad-
ministrative Instruction ICC/AI/2005/006 of 14 July 2005. Yet, the Rules of
Procedure of the Disciplinary Advisory Board were initially promulgated
as an annex to Information Circular ICC/INF/2007/003 of 7 May 2007,
whereas Sections 2 and 3 of the Presidential Directive of 9 December 2003
required the promulgation of general procedures by way of Presidential
Directive or Administrative Instruction. This was fixed by the promulgation
of Administrative Issuance ICC/AI/2019/006 on 28 October 2019. Until
that date, like the Rules of Procedure of the Appeals Board, pursuant to the
ruling of the ILOAT at paragraph 25 of its Judgment No. 3907, the Rules of
Procedure of the Disciplinary Advisory Board were unlawful, as were all
decisions that rely on them, that is, all final decisions on disciplinary and
grievance cases. The invalid promulgation of the Rules of Procedure of the
Disciplinary Advisory Board formed a solid basis for chalenging the law-
fulness of every final decision on disciplinary action before the ILOAT.
This implied that no disciplinary action could succeed before the Court
against a staff member who was aware of this gap, and feeled sufficiently
confident to challenge the validity of the Rules of Procedure of the Disci-
plinary Advisory Board. For this minority of staff members – the few who
are most aware of procedural subtleties, or who are well-advised – this cre-
ated a situation of total impunity for unsatisfactory conduct, as no discipli-
nary action could succeed against them. For those who adhered to the high-
est standards of integrity, and wished to report unsatisfactory conduct by
way of grievance complaint – where applicable – or other reporting under
the ICC Whistleblowing Policy (see Section 21.3.4. below), this created a
situation of deep sorrow, as they were aware that offenders could carry on
their misconducts in full impunity, as long as they knew about this gap.
The operational mandate of the IOM was adopted by Resolution
ICC-ASP/12/Res. 6 of the ASP in 2013 (the ‘Operational Mandate’). Sec-
tion 2.1 of the Presidential Directive of 9 December 2003 provides:
A Presidential Directive shall be required for the promulgation
of procedures for the implementation of regulations, resolu-

tions and decisions adopted by the ASP, including: […] (c)

Promulgation of regulations and rules governing […] the
monitoring of implementation and methods of evaluation.
As briefly alluded to by Karim A.A. Khan in his chapter and previ-
ous presentation, 46 and flagged by the International Criminal Court Bar As-
sociation in a legal analysis of February 2018, 47 since the promulgation of
Resolution ICC-ASP/12/Res. 6, no Presidential Directive was issued to im-
plement its provisions within the internal legal framework of the Court.
Furthermore, the specific administrative issuances governing activities of
relevance to the IOM Operational Mandate, such as disciplinary proceed-
ings, have not been amended, nor abolished, nor replaced, whereas para-
graph 3 of Resolution ICC-ASP/12/Res. 6 of the ASP had invited the Court
in 2013 to complete the review of its policies “necessary for the full opera-
tionalization of all functions of the IOM” within one year. This has not
been done. In his 2017 Annual Report to the ASP, the former Head of the
IOM rightfully flagged that the procedural provisions of the IOM Opera-
tional Mandate “contradict or appear at odds” with “pre-existing investiga-
tion-related authorities and procedures”. 48 Worse, Administrative Instruc-
tion ICC/AI/2019/006, which repromulgated the old Rules of Procedure of
the Disciplinary Advisory Board on 28 October 2019, did not amend these
to insert a provision on the role of the IOM in disciplinary proceedings, this
leaving it outside of the ICC disciplinary scheme. The non-adaptation of
the relevant administrative issuances governing disciplinary procedures
within the Court in breach of paragraph 3 of Resolution ICC-ASP/12/Res.
6 of the ASP has several consequences on the integrity of disciplinary pro-
ceedings. It would not be an overstatement to submit that, since the adop-
tion of the IOM Operational Mandate, not a single disciplinary procedure
within the Court is protected from being successfully challenged on the
ground of procedural flaws, irrespective of whether the IOM was involved
in it. The non-compliance of the Court with paragraph 3 of Resolution
ICC-ASP/12/Res. 6 of the ASP and its consequences were overlooked by
the IER. Its report limits itself to noting that “the IOM does not yet enjoy
46
Karim A.A. Khan, “Integrity and the Limits of Internal Oversight Mechanisms”, CILRAP
Film, The Hague, 2 December 2018 (https://www.cilrap.org/cilrap-film/181202-khan/).
47
ICCBA Legal Advisory Committee, “Legal Analysis: ICC Internal Accountability Mecha-
nisms and Policies”, February 2018 (‘Legal Analysis of ICC Internal Accountability Mecha-
nisms and Policies’) (http://www.legal-tools.org/doc/929bc0/).
48
ICC ASP, Annual Report of the Head of the Independent Oversight Mechanism, 17 October
2017, ICC/ASP/16/8, para. 15 (http://www.legal-tools.org/doc/aab4bb/).

the full confidence and trust of all staff”, 49 which is, by far, an understate-
ment of the symptom, without identifying the cause.
In disciplinary cases where the IOM fulfils its investigative function
under Sections 27 to 41 of its Operational Mandate, the parties – the person
whose conduct is alleged to be unsatisfactory and, where applicable, the
complainant – can challenge its intervention on the basis of the absence of
a Presidential Directive implementing the Operational Mandate within the
internal policy framework of the Court in accordance with Section 2.1 of
the Presidential Directive of 9 December 2003. The ILOAT Judgment No.
3907 would support such a claim. This can be used to demonstrate a breach
of procedure, and claim the quashing of the disciplinary decision: discipli-
nary measures may be cancelled, with financial compensation for prejudice
or, in case of acquittals, complainants may get financial compensation for
the Court’s failure to protect their rights. Either party may also claim that
the transmission of confidential information about the disciplinary charges
and, where applicable, grievance complaints to the IOM amounts, in the
absence of a proper legal basis for its intervention, to unauthorized disclo-
sure, a compromise of classified information and unsatisfactory conduct
pursuant to Sections 1.7, 16.1(b) and 40.3 of the ICC Information Protec-
tion Policy (see Section 21.3.5. below). This could be the basis for further
disciplinary action against the officials who transmitted the classified in-
formation to the IOM and against the IOM staff members themselves, if
they disclosed it to further recipient(s) in the course of the performance of
their functions.
On the other hand, in disciplinary cases that do not involve the IOM,
the parties can both claim, in case of an adverse decision, that the IOM
should have been involved pursuant to Section 33 of the IOM Operational
Mandate, which provides: “All reports of misconduct or serious miscon-
duct, including possible unlawful acts, made against an elected official,
staff member or contractor shall, if received by the Court, be submitted to
the IOM”. 50 The Court could claim that, in the absence of proper imple-
mentation pursuant to Section 2.1 of the Presidential Directive of 9 De-
cember 2003, the requirement of referral to the IOM under Section 33 of its
Operational Mandate did not apply, but the challenging party could rely on
the fact that the ASP is the legitimate authority of the Court, in charge of
49
IER Report, para. 285, p. 93, see above note 2.
50
See above note 45.

establishing the IOM pursuant to Article 112(4) of the Rome Statute and on
the tu patere legem quam ipse fecisti principle in support of her or his chal-
lenge. Additionally, the ICC failure to comply with its Presidential Di-
rective of 9 December 2003 with respect to the implementation of the Op-
erational Mandate of the IOM cannot be used by the Court against a litigant
pursuant to the nemo auditur suam propriam turpitudinem allegans princi-
ple. 51
The abovementioned policy gaps impacting on staff appeal and dis-
ciplinary cases are highly prejudicial to the overall perception of the
Court’s adherence to the highest integrity standards. It is also a factor of the
major vulnerability of the Court in staff litigation cases. Most disturbingly,
it also feeds a perception of a double standard between those staff members
who are well acquainted with the policy gaps impacting on the integrity of
internal proceedings – or well-advised – and the others. The members of
the first category, which necessarily includes the vast majority of the high
management of the Court, can, if they like, enjoy quasi-total impunity for
any misconduct, as they know that they can rely on the existing irregulari-
ties to quash any adverse decision, and can negotiate amicable settlements
in a position of force. For the second category, which necessarily includes
the vast majority of the lower level, non-managerial staff of the Court, it
feeds a perception of helplessness against the potential abuses they may
endure from the higher management, falling in the first category, in full
impunity. All in all, the impossibility of safeguarding the integrity of staff
appeal and disciplinary cases questions the very existence of the rule of law
in the institution mandated to be the central body of international criminal
justice. This is a situation that no responsible manager of the Court should
normally leave unaddressed, once aware of it.
21.3.4. Anti-Fraud and Whistleblowing Policies
In 2014, the ICC promulgated the general principles of its anti-fraud and
whistleblowing policies by way of Presidential Directive ICC/PRESD/G/
2014/002 of 13 May 2014 52 and Presidential Directive ICC/PRESD/G/
2014/003 of 8 October 2014 53 respectively. Both Directives provide, at
Sections 6.1 and 5.1 respectively, that they shall be translated into relevant
51
ILOAT, Judgment, 4 February 2004, No. 2318, p. 6 (http://www.legal-tools.org/doc/35b9a6/).
52
ICC Anti-Fraud Policy, see above note 16.
53
ICC Whistleblowing and Whistleblower Protection Policy, see above note 17.

administrative issuances to ensure a comprehensive system to combat fraud

and to protect whistle-blowers. As already flagged by the International
Criminal Court Bar Association in February 2018, 54 with the exception of
an Administrative Instruction of 6 October 2015 on Financial Disclosure, 55
no such procedure was promulgated. The principles of the ICC Anti-Fraud
and Whistleblowing Policies are yet to be implemented by appropriate pro-
cedures. The failure to promulgate procedures for the implementation of
the Anti-Fraud and Whistleblowing Policies is in breach of Section 5.2 of
the Presidential Directive of 9 December 2003, which affirms the responsi-
bility of the ICC management for ensuring that “new issuances or amend-
ments to existing issuances are promulgated as required”.
In addition to the formal breach that is the failure to promulgate the
procedures required to implement the Anti-Fraud and Whistleblowing poli-
cies, whistle-blowers in the Court are left with no procedure to seek and
obtain protection against retaliation. In the absence of procedures, bona
fide whistle-blowers reporting perceived fraud or unsatisfactory conduct in
compliance with their duty as staff members under Section 4.1 of the Anti-
Fraud Policy and/or Section 1.3(a) of the Whistleblowing Policy have no
procedural venue to obtain the protection against retaliation theoretically
offered to them under Section 4.4 of the Anti-Fraud Policy and/or Sections
2.2 and 4.5 of the Whistleblowing Policy. Like for the IOM, the IER report
takes note of the symptom when it reads that “there is a perception from
staff that individuals who officially complain may still bear a personal risk
and the repercussions, including possible reprisals for a staff member, if
publicly known, stand very high”, 56 but it does not identify the cause. The
non-implementation of appropriate procedures to protect whistle-blowers
and/or those reporting fraud constitutes, in itself, a violation of the afore-
said policies, providing a valid ground for seeking compensation before the
ILOAT for the Court’s failure to comply with its duty to protect. More gen-
erally, this failure questions the genuineness of the Court’s stated commit-
ment to combat fraud and protect whistle-blowers, and the adherence of its
management to the corresponding high standard of integrity. Read in light
of the policy gaps affecting the integrity of internal disciplinary proceed-
54
Legal Analysis of ICC Internal Accountability Mechanisms and Policies, see above note 47.
55
ICC, Disclosure Requirements – Financial Disclosure Programme of the Court (‘ICC-
FDP’) and IPSAS related party disclosures, 6 October 2015, ICC/AI/2015/005 (http://
www.legal-tools.org/doc/bbdb4c/).
56
IER Report, para. 287, p. 94, see above note 2.

ings before the ICC (see Section 21.3.3. above), this lack of compliance
provides more substance to the perception of impunity for misconduct, it
plays as a further deterrent to the fulfilment of staff members’ reporting
obligations, and further questions the existence of the rule of law within the
Court.
21.3.5. Protection of Information
The framework principles governing the protection of information within
the ICC are provided in a three-page Presidential Directive of 8 March
2005 entitled “Information Security Policy”. 57 This Presidential Directive
basically requires that all ‘users’ of information produced, transmitted and
stored for and by the Court “must comply with the security provisions and
restrictions placed on them by the Court” and further underlines that the
policy is binding both on the Court and “all those who seek access to its
information”. The ICC Information Protection Policy promulgated by Ad-
ministrative Instruction ICC/AI/2007/001 of 19 June 2007 58 governs most
aspects of the classification of ICC records, in any medium or form, judi-
cial and non-judicial alike. It defines the protection levels applicable to in-
formation within the ICC, the criteria applicable to the classification of in-
formation. It also provides rules governing its classification and handling,
dissemination on a ‘need-to-know’ basis and disclosure of classified infor-
mation, and the actions to be taken in cases of suspected compromise of
information security, including potential disciplinary action.
On 4 December 2013, the ICC amended Regulation 14 of the Regu-
lations of the Registry (‘RoR’) and redefined the levels of confidentiality
applicable to its judicial records. The four levels of classification under
Regulation 14 of the RoR are now: (a) ‘Public’, which is similar to ‘UN-
CLASSIFIED’ under Section 5.4 of the ICC Information Protection Policy;
(b) ‘Confidential’, which is similar to ‘[ICC] CONFIDENTIAL’ under Sec-
tion 5.10 of the ICC Information Protection Policy; (c) ‘Under Seal’, which
is similar to ‘[ICC] SECRET’ under Section 5.13 of the ICC Information
Protection Policy; and (d) ‘Secret’, which has no equivalent under the ICC
Information Protection Policy. The classification ‘[ICC] RESTRICTED’
provided under Sections 3.3(b) and 5.5-5.7 of the ICC Information Protec-
57
ICC, Information Security Policy, 8 March 2005, ICC/PRESD/G/2005/001 (http://
www.legal-tools.org/doc/3ae5ed/).
58
ICC, ICC Information Protection Policy, 19 June 2007, ICC/AI/2007/001 (https://
www.legal-tools.org/doc/04b126/).

tion Policy also has no equivalent under Regulation 14 of the RoR; in con-
trast, it is defined as the default classification for unmarked documents un-
der Section 5.14 of the ICC Information Protection Policy.
As a result of the amendment of Regulation 14 of the RoR, the ICC
Information Protection Policy of 2007 has become largely obsolete. The
numerous inconsistencies between this policy and the other instruments of
the Court is a factor of high insecurity for the daily operations of the Court,
in particular its judicial activities. Some of these risks were flagged in Feb-
ruary 2018 by the International Criminal Court Bar Association. 59 As a
consequence of the largely perceived obsolescence of the ICC Information
Protection Policy, there is now a wide consensus within the Court as to its
inapplicability, which has led to a Court-wide tacit agreement to disregard
it, instead of amending it. As a matter of general practice, the Office of the
Prosecutor does not mark judicial documents – in particular witness state-
ments – which are not (yet) filed in the records of a case or situation pro-
ceedings as to their level of classification, or marks them as [ICC] RE-
STRICTED only. Accordingly, these witness statements shall be deemed
[ICC] RESTRICTED only under the ICC Information Protection Policy
and are not confidential – and thus public – under Regulation 14 of the
RoR. This situation creates a high risk of incidental or malevolent dissemi-
nation of highly sensitive information compromising the protection of vic-
tims, witnesses and other persons at risk on account of such information.
Bona fide recipients of such sensitive information may not know that this
information is classified, because it is not marked so, and may disseminate
it further, thus increasing the risk. The sensitivity of this information should
normally require, by nature, its classification as Confidential. This issue
was raised before the Court in the Gbagbo and Blé Goudé case. 60 Trial
Chamber I confirmed that witness statements – though not marked – were
59
Legal Analysis of ICC Internal Accountability Mechanisms and Policies, see above note 47.
60
In French only: ICC, Le Procureur c. Laurent Gbagbo et Charles Blé Goudé, Version Pu-
blique Expurgée du Rapport du Conseiller Juridique désigné en vertu de la règle 74 du Rè-
glement de procédure et de preuve pour assister le témoin P-0046, 21 Février 2017, ICC-
02/11-01/15-810-Red, paras. 18–19 (https://www.legal-tools.org/doc/e61f0c/); ICC, Le
Procureur c. Laurent Gbagbo et Charles Blé Goudé, Observations Additionnelles relatives à
l’immunité du témoin P-0046 et à la confidentialité de sa déposition auprès des enquêteurs
du Bureau du Procureur, 20 Février 2017, ICC-02/11-01/15-815, paras. 7–14 (https://
www.legal-tools.org/doc/621750/).

classified confidential 61 and instructed the Office of the Prosecutor to reas-

sess the degree of compliance of its practice with the relevant administra-
tive instructions of the Court. 62 Nothing has been done after this ruling to
address this issue. One cannot exclude that the Office of the Prosecutor’s
persistent failure to mark and protect its witnesses’ statements properly had
an impact on its capacity to present a case that may support a conviction at
trial, and on the acquittal of the two accused persons on 15 January 2019:
how could the Prosecutor secure witness evidence without protecting the
confidentiality of their statements properly? Not marking these documents
and information, if confidential, amounts to a compromise under Section
1.7 of the ICC Information Protection Policy, and to unsatisfactory conduct
incurring potential disciplinary action under its Section 40.3. As long as the
Office of the Prosecutor will persist in not protecting its witnesses’ state-
ments properly, one can see this as a reason – not a justification – for not
addressing the issues impacting on the integrity of disciplinary proceedings
already mentioned (see Section 21.3.3. above).
The consequences of the failure to ensure the confidentiality of wit-
nesses’ statements on the fairness of the ICC proceedings is a matter for
judicial determination by judges. However, at the same time, the absence of
appropriate marking is placing victims, witnesses and other persons at risk
on account of unmarked information.
In any case, the obsolescence of the 2007 ICC Information Protection
Policy cannot serve as a justification for disregarding it, but rather triggers
a duty to review it pursuant to Section 5.2 of the Presidential Directive of 9
December 2003. As for the previous aspects, the ICC management is in
breach of this Presidential Directive for not having reviewed and adapted
the ICC Information Protection Policy to the new version of Regulation 14
of the Regulations of the Registry since, at least, December 2013. This is a
serious responsibility that the ICC management is once again accepting,
endangering the Court’s witnesses, victims, staff members, and other per-
sons at risk on account of the activities of the Court, whereas their protec-
tion is considered a shared responsibility of “all the organs of the Court and
61
ICC, Le Procureur c. Laurent Gbagbo et Charles Blé Goudé, Transcript of 15 February
2017, ICC-02/11-01/15, p. 3, lines 6-11 (https://www.legal-tools.org/doc/9f8359/).
62
ICC, Le Procureur c. Laurent Gbagbo et Charles Blé Goudé, ICC-02/11-01/15, Transcript
of 22 February 2017, p. 48 lines 23-25 to p. 49 lines 1-5 (https://www.legal-tools.org/doc/
4dc909/).

those involved with the trial”. 63 As is the case for field operations, the dis-
crepancy of the current practices of the Office of the Prosecutor with the
existing information protection policies provides the only rational explana-
tion – still, not a justification – for the Court’s failure to address the widely
known and acknowledged issues impacting the security of classified infor-
mation within the Court.
Once again, one can only hope that the IER Recommendation R12
mentioned above with respect to the undertaking of a full review of the
ICC policy framework will have, despite its lack of specificity, the power
to lead the Court to amend and update its Information Protection Policy,
inasmuch as there is internal willingness to do so. An offer made, on 30
January 2020, by the author of the present chapter to provide a ready-made
amended version of the ICC Information Protection Policy addressing its
current flaws was declined the same day, on the sole ground that it came
from the author (thus seemingly giving higher priority to the responding
staff member’s personal bias against the author, than the superior interest of
the Court to protect its information, displaying what integrity normally ad-
vises against). Recommendation R12 has thus been ready for implementa-
tion with respect to the ICC Information Protection Policy even before it
was made, but it is still fiercely resisted.
21.4. Conclusion
This chapter highlighted five examples of gaps in the ICC legal and policy
framework. These gaps are serious, and lead to the conclusion that the min-
imum basic requirements are not met in terms of policy and legal frame-
work, and that the ICC is failing, so far, to provide its staff and officials
with the minimal guidance they should receive in order to uphold the high-
est integrity standards.
In the absence of such guidance, the onus of upholding the highest
standard of integrity bears on ICC staff members and officials only. We
shall trust in their capacity to do so. The requirements of Articles 36(3)(a),
42(3), 43(3) and 44(2) of the Rome Statute that the ICC Judges, Prosecutor
and Registrar shall be persons of high moral character and that the staff
members be selected according to the highest standards of efficiency, com-
63
ICC, The Prosecutor v. Thomas Lubanga Dyilo, Decision on various issues related to wit-
nesses’ testimony during trial, 29 January 2008, ICC-01/04-01/06-1140, para. 36 (https://
www.legal-tools.org/doc/8367f1/).

petency and integrity are there to give trust in their capacity to lead their
way towards integrity without the need for such guidance.
The worst, however, is always possible. Like in Victor Hugo’s Ruy
Blas, even allegedly honest ministers and virtuous advisors do sometimes
loot their organization. 64 At paragraphs 15 and 17 of its Judgment No. 4003
issued on 26 June 2018, the ILOAT rules that the behaviour of the former
Registrar of the Court, Mr. Herman von Hebel – who was deemed a person
of high moral character pursuant to Article 43(3) of the Rome Statute –
amounted to “abuse of power, bad faith and retaliation” against one of the
four ICC staff members arrested and illegally detained in Zintan in 2012.
Though isolated, this instance reminds us that the guarantees provided in
the Rome Statute alone, though important, are not all, and fall short from
guaranteeing integrity and ethical behaviour in all circumstances.
By persisting in its failure to address the important policy and legal
issues detailed in the present contribution and provide the ICC with the ro-
bust policy framework called for in the IOM’s post-incident report on the
Zintan crisis of 21 February 2013, and many times since, up until the more
recent IER report of 30 September 2020, the management of the Court and
of the ASP as a whole accepted a great risk. Having tried several times to
persuade those concerned to take necessary measures, I hope that the pre-
sent contribution may strengthen the awareness of the importance of the
applicable standards of integrity at the ICC.
64
Victor Hugo, Ruy Blas, III:2 : “Bon appétit, Messieurs ! Ô Ministres intègres ! Conseillers
vertueux ! Voilà votre façon de servir, serviteurs qui pillez la maison !”.

22
______
Does the International Criminal Court

Really Need an Ethics Charter?
Suhail Mohammed and Salim A. Nakhjavani *
22.1. Introduction
In December 2018, the Assembly of States Parties (‘ASP’) received the
report of its external auditor on Human Resources Management. 1 The re-
port – which draws on 25 interviews with officials and staff, and the results
of a staff questionnaire – includes the following puzzling observations:
The Court does not have an ethics charter. This situation may
be surprising given its mission. However, the first chapter of
the Staff Regulations, in article 1.2 on “fundamental values”,
addresses various points that may be covered by such a charter:
general rights and obligations, confidentiality, honorary dis-
tinctions, gifts or remuneration, conflicts of interest, employ-
ment and activities outside the Court, and the use of the
Court’s property. Although it has real legal significance, it
does not have the moral impact of an ethics charter binding
on staff. 2
Having made these observations, the external auditor reaches his
finding:
In its regulations, the International Criminal Court has a series
of legal rules regarding ethics but without requiring its staff to
adhere to a more complete “ethics charter”, which would add
*
Suhail Mohammed is a Candidate Legal Practitioner at Bowmans, South Africa. He has
completed B. Pharm., LL.B. with distinction from the University of the Witwatersrand, Jo-
hannesburg, South Africa. Salim A. Nakhjavani is an Adjunct Professor of Law, University
of the Witwatersrand, South Africa, an Advocate of the High Court, South Africa and a
Member of the Johannesburg Bar. He was awarded the B.C.L., LL.B. with a magna cum
laude from McGill University, and an LL.M. first class from the University of Cambridge,
United Kingdom.
1
ICC, Final audit report on Human Resources management, 24 July 2018, ICC-ASP/17/7
(‘Audit report’) (https://www.legal-tools.org/doc/5qtwby/).
2
Ibid., para. 238 (emphasis added).

to the statutory aspect a moral message adapted to a jurisdic-

tion. 3
A straightforward recommendation follows: “The External auditor recom-
mends that the ICC develop and publish an ethics charter”. 4
One year later, the requisite report on Human Resources Manage-
ment was tabled for the consideration of the ASP. 5 There was no direct
mention of an ethics charter, which, it seemed, had been politely shelved,
in the best traditions of the international civil service. 6 Rather, “[a]ctivities
are also planned to reinforce the Court’s ethical framework, including train-
ing on harassment prevention and strengthening informal conflict resolu-
tion mechanisms”. 7
The situation may indeed be “surprising”, but for reasons other than
the one identified by the external auditor. The Court has made two of these
other reasons explicit. First, the current focus on harassment prevention is
prompted by painful realities about the apparent prevalence of harassment,
sexual harassment, and abuse of authority at the ICC 8 that may not have
291F
been disclosed to the external auditor or were omitted from the external
auditor’s report. Second, the (mis)management of misconduct has become
a serious institutional risk to the mandate of the ICC, and a costly one. 9 290F
3
Ibid., p. 38, “Finding”, under paras. 238–240 (emphasis added).
4
Ibid., “Recommendation 9”.
5
ICC, Report of the Court on Human Resources Management, 25 July 2019, ICC-ASP/18/4
(‘Report of the Court on Human Resources Management’) (https://www.legal-tools.org/
doc/pys2zp/).
6
See, for instance, Philip Allott’s satirical critique, Curing the Madness of the Intergovern-
mental World, 8 July 2014, p. 4 (originally given as “The Idea of International Society”, Al-
ec Roche Lecture, 2006, Oxford, available on the web site of the Squire Law Library, Uni-
versity of Cambridge).
7
Report of the Court on Human Resources Management, para. 13, p. 2, see above note 5.
8
See ICC, Annual Report of the head of the Independent Oversight Mechanism (‘IOM’), 11
November 2019, ICC-ASP/18/22, para. 14, p. 4 (https://www.legal-tools.org/doc/2u1ipr/),
noting that complaints of harassment, sexual harassment and abuse of authority made up just
over 40 per cent of the 32 complaints to the IOM between 1 October 2018 and 30 October
2019.
9
See, for example, ICC, Report of the Committee on Budget and Finance on the work of its
thirty-second session, 3 June 2019, paras. 140–152 (https://www.legal-tools.org/doc/
q91xoa/); noting specifically “with concern the increased number of litigation cases and
their significant financial impact” (para. 149), and provision of almost EUR 1 million for
some 27 cases pending before the International Labour Organization Administrative Tribu-
nal.

22. Does the International Criminal Court Really Need an Ethics Charter?
One further reason remains obscure, at least in public documents is-

sued by the ICC so far: its “moral message” to its staff is not missing.
This observation finds clear expression in the Final Report of the In-
dependent Expert Review of the International Criminal Court and the
Rome Statute System, dated 30 September 2020. The Independent Expert
Review, which was authorised by ICC-ASP/18/Res.7, takes up the recom-
mendation of the external auditor for the adoption of a single Court-wide
Ethics Charter laying down the minimum professional standards expected
of all individuals working with the Court.
The rationale behind the recommendation of the Independent Expert
Review was that the existing ethical framework is “fragmented, and does
not provide for clear common principles and minimum standards applica-
ble to all individuals affiliated with the Court”. 10 A unified, Court-wide
Ethics Charter would, according to the Expert Review, “unite all individu-
als affiliated with the Court under the same principles, under the One Court
Principle”. 11
The Independent Expert Review, then, makes one thing clear: it is
not the case that the ICC is missing a “moral message”, but rather that this
message is clouded, as a consequence of the fragmented presentation of the
ICC's multiple ethical codes and instruments.
The ICC normative framework is clothed with not less than six codes
of ethical and professional conduct, aside from the content of the Statute
itself, Article 1.2 of the Staff Regulations, and the moral authority of the
solemn undertakings of officials and staff. These are, in order of entry into
force: the Code of Judicial Ethics, adopted by the judges of the Court
(2005); 12 the Code of Professional Conduct for counsel, adopted by the
ASP (2005); 13 the Code of Conduct for Investigators, promulgated by the
Registrar (2008); 14 the Code of Conduct for Staff Members, promulgated
10
ICC, Independent Expert Review of the International Criminal Court and Rome Statute Sys-
tem, Final Report, 30 September 2020 (https://www.legal-tools.org/doc/cv19d5/).
11
Ibid.
12
ICC, Code of Judicial Ethics, 2 January 2005, ICC-BD/02-01/05 (https://www.legal-
tools.org/doc/383f8f/).
13
ICC, Code of Professional Conduct for counsel, 2 December 2005, ICC-ASP/4/Res.1
(https://www.legal-tools.org/doc/f9ed33).
14
ICC, Code of conduct for investigators, 10 September 2008, ICC/AI/2008/005 (‘ICC Code
of conduct for investigators’) (https://legal-tools.org/doc/c86582).

by the Registrar (2011); 15 the Code of Conduct for the Office of the Prose-
cutor, promulgated by the Prosecutor (2013); 16 and the Code of Conduct
for Intermediaries (2014). 17 A notable exclusion from this panoply of pro-
fession-specific standards appears to be the interpreters’ and translators’
profession, which was subject to specific ethical standards at the Interna-
tional Criminal Tribunal for the former Yugoslavia 18 and the Special Court
for Sierra Leone. 19
So, the ICC’s “moral message” to its staff is not missing. Far from
it – at least on paper. But transmission does not imply reception. The real
question is how the message is translated into action, both individually and
collectively. And the real challenge is that there may be little appetite for
the promulgation of yet more ethical standards in a social space already
inundated by expressions of moral righteousness, and in a world weary of
empty speech.
Moreover, any proposal for additional normative standards must be
assessed against the compliance burden of near-inevitable double deontol-
ogy. We use this term to refer to a situation of being “subject simultaneous-
ly to two [or more] professional codes of conduct”. 20 Indeed, it may be
more accurate, in the context of the ICC, to refer to multiple deontology,
and to distinguish two forms: horizontal and vertical. They encompass sit-
uations where a lawyer is bound by multiple codes of ethical conduct with-
in the ICC normative framework (horizontal multiple deontology); and also
between the ICC framework and their home State(s) of registration, admis-
sion or enrolment for purposes of legal practice (vertical multiple deontol-
ogy).
15
ICC, Code of Conduct for Staff Members, 4 April 2011, ICC/AI/2011/002 (https://legal-
tools.org/doc/75f9db).
16
ICC, Code of Conduct for the Office of the Prosecutor, 5 September 2013 (‘OTP Code’)
(https://legal-tools.org/doc/3e11eb).
17
ICC, Code of Conduct for Intermediaries, 1 March 2014 (https://legal-tools.org/doc/eac2f0).
18
International Criminal Tribunal for the former Yugoslavia, the Code of Ethics for Interpret-
ers and Translators Employed by the International Criminal Tribunal for the former Yugo-
slavia, 8 March 1999, IT/144 (https://www.legal-tools.org/doc/xix9r7/).
19
Special Court for Sierra Leone, Code of Ethics for Interpreters and Translators Employed by
the Special Court for Sierra Leone, 25 May 2004 (https://legal-tools.org/doc/c56846).
20
Council of Bars and Law Societies of Europe, Guidelines for Bars and Law Societies on
Free Movement of Lawyers within the European Union, p. 9. The English term comes from
the original French (“double déontologie”).

We attempt to proceed scientifically in our ethical analysis. As Ibn

Sina proposed in his treatise, al-Burhân, 21 one appropriate method to ac-
quire first principles is tajriba, or experimentation. 22 Ibn Sina’s account of
tajriba follows a two-step process, 23 which we have adapted to assist us in
answering the question with which this chapter opens: “Does the Interna-
tional Criminal Court really need an ethics charter?”.
Our first step in this ‘thought experiment’ is to assess whether the
current existing framework is capable of communicating and entrenching
the ICC’s “moral message”. The second step will use this premise in a syl-
logism to show that this existing capability militates against the need for an
additional ethics charter, as recommended by the external auditor on Hu-
man Resources Management.
In the first step, we analyse, in particular, whether the proper imple-
mentation of the existing ethical codes can entrench the culture of ethics
contained in this “moral message” to its staff. We then consider whether the
publication of an additional ethics charter may actually retard the achieve-
ment of the external auditor’s specified objectives, because of the added
‘compliance burden’ flowing, in part, from problems of double deontology.
In the second step, we will consider the specific objectives that are
implied – and appear to underpin – the external auditor’s recommendation
for an additional ethics charter. We will then examine whether the conclu-
sions from the first step of our analysis would satisfy the external auditor’s
objectives.
Our experimentation may not be double-blind, but it is blind in at
least one respect – problematically, but inevitably: we do not know, and can
never know, the reality of the lived ethics of staff in the offices and corri-
dors of the ICC. Our analysis does not rest on qualitative or quantitative
methodology, on surveys of staff. To quote Maurice Mendelson in a new
context, we must “beware of the ‘weaving of nets to sieve the mist’”. 24
21
Ash-shifâ, al-Burhân, A. Badawi (eds.), Cairo: Association of Authorship, Translation and
Publication Press, 1966.
22
Jon McGinnis, “Scientific Methodologies in Medieval Islam”, in Journal of the History of
Philosophy, July 2003, vol. 41, no. 3, p. 307.
23
Ibid., p. 317.
24
Maurice H. Mendelson, “The Formation of Customary International Law”, in Recueil des
cours, 1998, vol. 272, p. 174, citing D.J. Enright, The Alluring Problem: An Essay on Irony,
1986, p. 5.

22.2. Does the Existing Ethical Framework Communicate a “Moral

Message”?
The external auditor’s report suggests that an “ethics charter” be developed,
which would “add to the statutory aspect a moral message adapted to a ju-
risdiction”. 25 The report suggests that the envisioned charter canvass the
following points, which echo the “fundamental values” contemplated in
Article 1.2 of the Staff Regulations: “general rights and obligations, confi-
dentiality, honorary distinctions, gifts or remuneration, conflicts of interest,
employment and activities outside the Court, and use of the Court’s proper-
ty”. 26 It appears that the “moral message”, which the external auditor finds
apposite can be adequately delivered in the form of codified guidelines in
respect of the above-mentioned points. The question, then, is whether or
not the existing framework addresses these points in sufficient detail to
convey the “moral message” envisioned by the external auditor. To frame
this question in another way, how might the external auditor have respond-
ed to question: Does the ICC’s existing ethical framework already contain
the “moral message” that the proposed ethics charter seeks to communicate?
In a nutshell, our answer is yes. The substantiation lies in the constel-
lation of ICC codes of conduct that have already entered into force. In
proving this, we will analyse these codes (with a specific focus on the
OTP’s Code of Conduct, given its relative breadth and depth, and its infan-
cy) through the prism of “fundamental values” which the external auditor
recommended that the ICC codify through the proposed ethics charter. Ad-
ditionally, the robustness of these existing codes will be tested against what
information is publicly available on past ethical lapses and failures involv-
ing ICC staff and officials.
The OTP’s Code of Conduct begins by laying out five fundamental
rules. 27 These rules enshrine the values of independence, impartiality, non-
discrimination, respect for the rule of law, a dedication to upholding fun-
damental human rights, and maintaining the integrity of the Court. 28 These
five fundamental rules are reiterated in Section 4 of the OTP’s Code of
Conduct, titled “General Principles”. The foundation and principles of this
Code echo the “fundamental values” that are contemplated in Article 1.2 of
25
Audit report, p. 38, “Finding”, under paras. 238–240, see above note 1.
26
Ibid., para. 239.
27
ICC Code of conduct for investigators, see above note 14.
28
Ibid.

the Staff Regulations which forms the basis for the external auditor’s rec-
ommendation. This is the first demonstration of the congruency between
the OTP’s Code of Conduct and the proposed ethics charter.
The next point of analysis is Section 3 of the OTP’s Code of Conduct,
the “Purpose of the Code”. This section explains that the Code seeks to “es-
tablish a set of minimum standards of conduct […] as a supplement to the
general standards of conduct as promulgated in the Code of Conduct for
Staff Members, the Staff Regulations, the Staff Rules, the Code of Conduct
for Investigators and any other document that may be relevant to the per-
formance of their duties”. In addition to this, the General Principles of the
OTP’s Code of Conduct (found in Section 4) explicitly indicates that the
OTP is to be primarily guided by, inter alia, the principle of “professional
ethics and integrity”. The external auditor’s report explains that the existing
standards contained in Article 1.2 of the Staff Regulations “has a series of
legal rules regarding ethics but without requiring its staff to adhere to a
more complete ethics charter”. 29 The OTP’s Code of Conduct, it seems, has
the potential to function as the “complete ethics charter” that has been con-
templated by the external auditor, in respect of a subset of staff – those
serving in the OTP. This is premised on the fact that the OTP’s Code of
Conduct not only expands upon the “legal rules regarding ethics” (which
are located in Article 1.2 of the Staff Regulations), but also requires the
staff of the OTP to adhere to these clearly defined standards of conduct.
Both of these points, at least on their face, seem to achieve the objectives
laid out by the external auditor. Additionally, the manner in which the
OTP’s Code of Conduct functions seems to align with the objectives of the
external auditor in that it supplements the “fundamental values” in Article
1.2 of the Staff Regulations, instead of subsuming that Article.
The external auditor’s recommendation, however, was not solely
aimed at the OTP. Indeed, it was envisioned that the proposed ethics char-
ter would be applicable to all ICC staff. This, presumably, intended to not
only include the ICC’s four constituent organs, but also the counsel who
practise before the Court. It is worth noting, then, that the same commit-
ment to the “fundamental values” contained in Article 1.2 of the Staff Reg-
ulations has been made binding on members of each of these offices (in-
cluding counsel who practise before the Court) through their own separate-
ly applicable codes of conduct. These codes of conduct rightly vary in rela-
29
Audit report, p. 38, “Finding”, under paras. 238–240, see above note 1.

tion to the specific duties that flow from fundamental values, and differ
accordingly in terms of the management of conflicts of interests, confiden-
tiality, general obligations, remuneration and employment outside of the
Court. However, the essence of these codes remains the same: that they are
a set of ethical and professional guidelines which regulate standards of
conduct in relation to the fundamental values in Article 1.2 of the Staff
Regulations. This fact is mostly uncontroversial, and is easily ascertainable
from the explicit language of each of these individual codes. The content of
each of these codes, which have entered into force over a period between
2005 and 2011, would seem to satisfy the external auditor’s objectives in
the same manner as we described in relation to the OTP’s Code of Conduct.
However, an ethics charter that broadly commits itself to upholding
the “fundamental values” contained in Article 1.2 of the Staff Regulations
but fails to provide more definitive guidelines on how that can be achieved
will only ring hollow.
The next point that must be addressed, then, is whether the existing
of codes are – at least formally – capable of practicably fulfilling that
commitment. It is helpful to address this point through the lens of the actu-
al language of the existing guidelines, but perhaps more effective to do so
through an analysis of how these guidelines would (and could have been)
applied in publicly disclosed ethical lapses or failures which have affected
the Court in the past. We turn to consider three specific incidents arising
during the Lubanga trial; in respect of the Prosecutor’s editorial in the Dar-
fur situation; 30 and during the Ruto and Sang and Gbagbo trials.
22.2.1. The Lubanga Trial
The ethical turbulence associated with the Lubanga trial has been well
documented. 31 The issue was the disclosure of confidential documents by
the OTP during the course of the trial. During the trial, the Prosecutor had
failed to disclose a cache of documents which contained potentially excul-
patory evidence, citing “confidentiality” as the rationale for such conduct. 32
This failure was characterised as a “wholesale and serious abuse” by the
Trial Chamber. 33 The question that must be answered here is, firstly,
30
See Section 22.2.2. and note 36 below. See also Milan Markovic, “The ICC Prosecutor’s
Missing Code of Conduct”, in Texas International Law Journal, 2011, vol. 47, no. 1.
31
For a deeper discussion surrounding this particular case, see ibid.
32
ICC, The Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber, ICC-01/04-01/06, para. 17.
33
Ibid., para. 76.

whether the existing OTP Code of Conduct – which would have been di-
rectly applicable, had it been in force at the material time – would have
been capable of providing adequate guidance in relation to this issue; and
secondly, if that is not the case, whether the proposed ethics charter would
be capable of providing suitable guidance in this same instance.
The OTP’s Code of Conduct appears to address the issue of disclo-
sure of documents in Section 3. This section, however, is broadly stated,
and simply places an emphasis on the OTP’s obligation to
comply with the applicable rules on disclosure of evidence
and inspection of material in the possession or control of the
Office in a manner that facilitates the fair and expeditious
conduct of the proceedings and fully respects the rights of the
person under investigation or the accused, with due regard for
the protection of victims and witnesses.
The breadth of this rule has been critiqued by commentators, 34 as it
does not provide “any useful clarity or guidance to members of the OTP to
aid their interpretation of the Statute”. 35 It certainly does not go as far as
the draft rule on disclosure that has been proposed by Markovic, 36 which
would provide strict guidelines as to the legal steps that the OTP ought to
follow in respect of the disclosure of confidential documents during the
trial process.
In our view, the broad terms of the duty of confidentiality in the
OTP’s Code do not limit the effectiveness of its ethical standards concern-
ing the issue of confidentiality. This is because, in our view, the Code of
Conduct ought not to constitute a crystallised guideline on trial procedure
or strategy. Its primary function is to provide an ethical and professional
underpinning which must be borne in mind when devising strategies which,
really, are a matter of procedural and evidentiary law, not ethics, and
should always be guided by the ICC Statute, the Rules of Procedure and
Evidence, and previous decisions made by the Court (where appropriate). 37
In this regard, the current Code of Conduct fulfils its purpose. That is be-
cause it places an imperative on the OTP to interpret these sources of law
34
Lawrence Pacewicz, “International Criminal Court Code of Conduct for the Office of the
Prosecutor”, in International Legal Materials, 2014, vol. 53, no. 2, p. 398.
35
Ibid.
36
Markovic, 2011, pp. 221–222, see above note 30.
37
Rome Statute of the International Criminal Court, 17 July 1998, Article 21 (‘ICC Statute’)
(http://www.legal-tools.org/doc/7b9af9/).

in such a manner that fulfils its obligation in terms of Section 3, while also
affording the OTP the flexibility required to properly pursue prosecutions,
as required by the mandate of that Office. What staff are guided to weigh is
this interface between the Code of Conduct and the law governing trials at
the ICC.
For the sake of argument, let us assume that the OTP’s current Code
of Conduct fails to provide adequate guidance with respect to the issue of
disclosure. The question that then arises is whether the external auditor’s
proposed ethics charter would be capable of filling the gap. We do not
think it would, for straightforward reasons: the external auditor’s proposal
is not specifically aimed at the OTP. Instead, it is aimed at ICC staff in
general. Such a charter could only be couched as generally – if not more
so – as the OTP’s existing Code of Conduct, which is tailored to idiosyn-
cratic issues such as prosecutorial obligations of disclosure. To the extent
the OTP’s Code of Conduct were deficient in the depth of guidance on dis-
closure, the more effective solution would likely be to amend or supple-
ment the existing Code of Conduct, not to promulgate an ethics charter.
22.2.2. The Darfur Situation and the Prosecutor’s Editorial
In 2010, the Appeals Chamber reversed the Pre-Trial Chamber’s decision
to grant an arrest warrant for Omar Al-Bashir for crimes committed in Dar-
fur during the period of March 2003 to July 2008. 38 The ratio that under-
pinned this decision was that the Pre-Trial Chamber applied the incorrect
standard of proof in determining whether an arrest warrant ought to have
been granted. 39 Almost immediately thereafter, the Prosecutor, Luis More-
no-Ocampo, authored a piece which was published in The Guardian, titled
“Now end this Darfur denial”. 40
In the piece, the Prosecutor claimed that the original decision by the
Pre-Trial Chamber had found that “Bashir’s forces have raped on a mass
scale in Darfur” and had “deliberately inflict[ed] on the Fur, Masalit and
Zaghawa ethnic groups living conditions calculated to bring about their
38
ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Appeals Chamber, Judgment on
Appeal Against the “Decision on the Prosecution's Application for a Warrant of Arrest
against Omar Hassan Ahmad Al Bashir”, 3 February 2010, ICC-02/05-01/09-73, para. 2
(https://www.legal-tools.org/doc/9ada8e/).
39
40
Luis Moreno-Ocampo, “Now end this Darfur denial”, The Guardian, 15 July 2010.

physical destruction”. 41 The Pre-Trial Chamber, however, had made no

such findings; instead, it had only made a determination in relation to the
granting of a warrant of arrest under Article 58(1) of the Rome Statute. 42
The misleading nature of this editorial was widely criticised, with some
going so far as suggesting that its publication constituted sufficient grounds
to consider removing the Prosecutor from office. 43
The same reflective question that we applied to the Lubanga issue
must be applied in this instance, too. Would the OTP’s Code of Conduct –
were it in force at the material time – have provided adequate clarity on this
issue of extrajudicial speech; and if not, would the external auditor’s pro-
posed ethics charter be capable of providing such clarity?
Section 8 of the OTP’s Code of Conduct, titled “Public Expression
and Association”, is dedicated to addressing the issue of prosecutorial
speech. Article 39 under that section specifically addresses the issue of ex-
trajudicial speech, stating that
Members of the Office shall refrain from making any public
pronouncements, outside the context of the proceedings before
the Court, that they know, or reasonably ought to know, may
be disseminated by means of public communication, and may
have a substantial likelihood of prejudicing the judicial pro-
ceedings or the rights of any person in the proceedings before
the Court.
This standard of conduct seems to be capable of directly addressing
the issue that had arisen in respect of the Al-Bashir editorial, insofar as it
provides an almost explicit prohibition on speech that would “prejudic[e]
[…] the rights of any person in proceedings before the Court”. In the Al-
Bashir case, such prejudice takes the form of the derogation of Al-Bashir’s
right to be presumed innocent until proven guilty before the Court. 44
The standard does not, however, follow the more detailed iteration
advanced by Markovic, 45 which would prohibit “speaking to the media
about the merits of particular cases or the guilt or innocence of certain ac-
cused before judgment by the Court, and making any public statements re-
41
Ibid; see also, Markovic, 2011, p. 230, see above note 30.
42
Ibid.
43
Kevin Jon Heller, “The Remarkable Arrogance of the ICC Prosecutor”, Opinio Juris, 20
July 2010 (available on its web site).
44
Markovic, 2011, p. 231, see above note 30.
45
Ibid., p. 235.

garding the character, credibility, reputation, or record of an accused or any

witness”. 46 This version is more comprehensive than what is contained in
the existing OTP Code of Conduct, but ultimately seeks to protect against
the same harm as contemplated by Section 8 of that Code: prejudicing the
rights of persons in proceedings before the Court. The existing Code is ef-
fective in preventing this harm, as has been acknowledged by academic
commentators. 47 This is despite the existing rule being cast in broader
terms than those Markovic envisioned. The rationale for this is that his cat-
alogue of protected targets of extrajudicial speech – “the character, credi-
bility, reputation, or record of an accused” person – are generally accepted
as ingredients of a fair trial. The existing Code, then, takes each of these
considerations into account, while simply framing them in the context of
fair trial rights. In this regard, the guidance of the OTP’s Code appears suf-
ficient, in the sense that it would have curbed the publication of comment
in the nature of the Prosecutor’s editorial.
Limits on extrajudicial speech also apply to counsel practising before
the Court, as well as comments made by judges before whom the proceed-
ings are unfolding. In this respect, the Code of Professional Conduct for
Counsel and the Code of Judicial Ethics find application.
The Code of Professional Conduct for Counsel implicitly addresses
this issue in Article 24(1), where it is stated that “Counsel shall take all
necessary steps to ensure that his or her actions or those of counsel’s assis-
tants or staff are not prejudicial to the ongoing proceedings and do not
bring the Court into disrepute”. This Article, cast broadly, seems to encom-
pass extrajudicial speech to the extent that it is capable of prejudicing the
rights of persons in proceedings before the Court (and thus the proceedings
themselves). The guidelines in this respect are less specific than those
which apply to the OTP. This distinction, however, is not inappropriate
when one considers the higher duty of care that is applicable to the OTP. 48
Notwithstanding that difference, the Code of Professional Conduct for
Counsel provides the necessary framework to address the issue of extraju-
dicial speech of the kind that is reflected in the Prosecutor’s editorial.
Similarly, the Code of Judicial Ethics – in Article 9 – clearly and un-
equivocally prohibits judges from commenting on pending cases. This pro-
46
Ibid.
47
Pacewicz, 2014, p. 398, see above note 34.
48
Ibid., fn. 259.

hibition is reflective of the stringent level of impartiality that is expected of

ICC judges. This prohibition ensures that no person appearing in proceed-
ings before the Court – and thus before the judges of the Court – will be
thought to be denied the presumption of innocence that the Rome Statute
affords to them.
Let us assume, once again for the sake of argument, that these exist-
ing codes do not go far enough with regard to the regulation of extrajudi-
cial speech for the purpose of protecting the rights of persons in proceed-
ings before the Court. The question, once again, is whether the proposed
ethics charter would be sufficient in achieving that goal, when overlaid on
the existing codes.
Any ethics charter applicable across the ICC to all staff would not be
capable of providing staff serving in each organ, or counsel who practise
before the Court, with anything more comprehensive than what their cur-
rently existing codes already provide for. A general ethics charter can only
address issues, well, generally. It is likely to be incapable of addressing the
differing ‘standards of expression’ that are appropriate for each individual
office. The guidelines would be sparser than what already exists, and would
not overcome the same shortcomings that might have already been identi-
fied in respect of the existing ethical framework. It is for this reason, we
suggest, that the external auditor’s proposed ethics charter would do noth-
ing more than what has already been done.
22.2.3. The Ruto and Sang and Gbagbo Trials
The Ruto and Sang trial, 49 like the Lubanga trial, is “one of ICC legend”. 50
The Ruto and Sang trial saw Kenyan defendants appear before the Court,
having been charged with crimes against humanity. 51 In this case, the Trial
Chamber noted its concern regarding the Prosecutor’s various disclosure
failures, and needed to make an order ensuring that the Prosecution would
act in full conformity with its disclosure obligations. 52 The ethical breach
49
ICC, The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Trial Chamber, ICC-
01/09-01/11.
50
Constance Rachel Turnbull, “Understanding and Improving the 2013 Code of Conduct for
the Office of the Prosecutor for the International Criminal Court”, in Georgetown Journal of
Legal Ethics, 2018, vol. 31, p. 891.
51
Ibid.
52
The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Trial Chamber, ICC-01/09-
01/11, para 59.

that tainted the Gbagbo trial 53 was of a similar nature. In that case, the is-
sue in question revolved around the (dis)use of evidence which “might
have cut against the investigative angle”. 54
As stated previously, the heart of our enquiry is whether the existing
ethical framework provides (or would have provided) adequate guidelines
that, if applied in these cases, would have provided greater clarity in re-
spect of the intersection between disclosure of evidence, confidentiality
and objective truth-seeking. The second step of the enquiry also reflects our
previous undertakings and, therefore, addresses whether the external audi-
tor’s proposed ethics charter would provide better guidance in respect of
this same intersection.
Sections 1 and 3 of the OTP’s Code of Conduct are particularly help-
ful in this respect. Section 1 provides clear guidance as to how a Prosecutor
ought to deal with the objective truth-seeking component of this enquiry. In
addressing this issue, Rule 49 explains that:
In compliance with the duty to establish the truth under article
54(1)(a) of the Statute, the Office shall investigate incriminat-
ing and exonerating circumstances equally in all steps in-
volved in the planning and conduct of investigative and prose-
cutorial activities. In particular, Members of the Office shall:
[…] b) consider all relevant circumstances when assessing ev-
idence, irrespective of whether they are to the advantage or
the disadvantage of the prosecution.
This is particularly helpful as it frames the ethical duties of the OTP
through a statutory lens, namely Article 54(1)(a) of the Rome Statute, as
well as a professional and ethical responsibility to not discriminate between
incriminating and exonerating evidence. This is particularly helpful in cas-
es such as Ruto and Sang and Gbagbo, as it crystallises a specific instance
when the Prosecutor must actively consider Article 54(1)(a), which places
an obligation on him or her to “investigate incriminating and exonerating
circumstances equally” – namely when assessing evidence during the case-
preparative phase. The helpfulness of Rule 49 is buttressed by the language
of Rule 49(b), which is far more comprehensive than the statutory duty
contained in Article 54(1)(a) in that it places particular emphasis on the
manner in which the OTP should assess evidence which may disadvantage
53
ICC, The Prosecutor v. Laurent Gbagbo, Trial Chamber, ICC-02/11-01/11-49.
54
Turnbull, 2018, p. 892, see above note 50.

the Prosecutor’s case. The existence of this rule, according to Turnbull,

“means that it is unlikely that such abuses will be repeated without prose-
cutorial sanctions”. 55
Section 3 of the OTP Code would have found expression, too. Rule
53(a) obliges the OTP to disclose any evidence (within the boundaries of
the applicable rules on disclosure) “that shows or tends to show the inno-
cence of the accused, or to mitigate the guilt of the accused, or which may
affect the credibility of prosecution evidence”. This rule, like Rule 49(a),
provides the OTP with clear guidance as to how it should conduct itself in
respect of the disclosure of evidence which may exonerate a person in pro-
ceedings before the Court. The existence of this rule, much like Rule 49(a),
would ostensibly reduce the probability of instances of the Ruto and Sang
or Gbagbo kind unfolding in the future.
As with the issue of extrajudicial expression, the issue of failing to
disclose evidence which is determined to be prejudicial to one’s own case,
but which appears to be objectively true, is one that poses an ethical chal-
lenge to counsel who appear before the Court, and not only the OTP. In this
respect, the Code of Professional Conduct for Counsel is instructive. Arti-
cle 24(3) of that document is particularly applicable in such instances. It
states that “Counsel shall not deceive or knowingly mislead the Court. He
or she shall take all steps necessary to correct an erroneous statement made
by him or her or by assistants or staff as soon as possible after becoming
aware that the statement was erroneous”. This obligation embedded in Ar-
ticle 24(3) mirrors that which is made binding upon the OTP in Rules 49
and 53, insofar as it can be reasonably understood that actively withholding
of evidence on the basis that it is prejudicial to one’s own case constitutes
deception of the Court. This understanding can hardly be seen as contro-
versial, and the applicability of Article 24(3) is therefore a natural corollary
of such conduct. In this regard, it is clear that counsel, when dealing with
situations such as those which arose in the cases of Ruto and Sang and
Gbagbo, would be properly guided as to how they should (and should not)
conduct themselves during the course of proceedings.
At this juncture we ask once again whether an additional set of
guidelines – the proposed ethics charter – would supplement the effective-
ness of the existing codes. Once again, any Court-wide ethics charter
would necessarily be cast in general terms. Such a charter could only reit-
55
Ibid.

erate the general legal obligation to assess evidence impartially. This obli-
gation, then, would likely resemble the normative content of Article
54(1)(a), but be made applicable to a broader range of ICC staff than that
article, which concerns only the OTP. This general proposition, then, will
provide a certain degree of guidance in the sense that it places an ethical
duty on members of the Court, which will function in tandem with the stat-
utory duty that exists in the Rome Statute. This guidance, however, will not
be any more comprehensive – nor any more helpful – than the existing
codes of conduct, which not only confer the same ‘dual duty’ onto the
Court’s staff, but also goes on to further explain the specific importance of
assessing and disclosing evidence which would be prejudicial to one’s own
case. The external auditor’s proposed ethics charter, then, will provide no
further guidance than what is contained within the existing ethical frame-
work.
22.2.4. Reflection
Each of the above-mentioned incidents falls into various constituents of the
“fundamental value” composite that the external auditor’s proposal seeks to
construct. As has been demonstrated, the existing statutory framework at
the ICC is sufficiently robust to achieve such construction on its own. Put
otherwise, the “moral message” which the external auditor wishes to com-
municate through the publication of an ethics charter is capable of being
delivered by the existing constellation of ethical codes in force at the ICC.
22.3. Entrenching the ICC’s “Moral Message” in Practice
Having established that the necessary “moral message” has, at least formal-
ly, been promulgated to the staff serving at every constituent office of the
ICC, we must now consider how this “moral message” might permeate at
the level of culture. 56 We will then consider whether an additional ethics
charter would be helpful in further entrenching the “moral message”.
The literature in management science makes plain that the mere ex-
istence of ethics charters and codes of conduct, does not in itself guarantee
56
The distinction that we have drawn between “formal” and “informal” communication refers
to the difference between having an ethical framework in place and ensuring the implemen-
tation of that ethical framework in a manner that results in the adoption of the ethical values
contained within that framework.

ethical conduct by staff within an organisation. 57 This is especially true in

instances when enforcement is lacking. 58 There is no reason why this logic
would not apply to the ICC, whose robust ethical framework, it would ap-
pear, has not spontaneously generated virtue in all individuals under all cir-
cumstances.
We first explore some of the reasons which may render the ICC’s ex-
isting ethical framework susceptible to serious ethical breaches, and sec-
ondly, consider approaches that might mitigate this risk of breaches of this
kind.
A great many large organisations have fallen into ethical default, de-
spite having ethical guidelines in place. 59 This fact prefaces the first leg of
our analysis, that being some of the reasons which render organisations
susceptible to ethical breach, even when those organisations are governed
by robust ethical frameworks. Webley and Werner 60 suggest that the chasm
between “policy and practice” is rooted in two interlinked considerations: a)
ineffective ethics programmes (which we understand as referring to ‘for-
mal’ implementation, such as an ethics code) and b) deficiencies in corpo-
rate culture – in other words, a lack of embedding. 61
In respect of the first factor, Webley and Werner suggest that an inef-
fective ethics code might “only encompass a narrow set of issues without
addressing wider obligations or commitments”. 62 Additionally, it is sug-
gested that an ineffective ethics code may constitute nothing more than “a
set of rules that the employees are expected to follow, rather than values-
based and providing guidance on how to handle ethical dilemmas”. 63 Lastly,
Webley and Webber suggest that another hallmark of an ineffective ethics
57
Simon Webley and Andrea Werner, “Corporate Codes of Ethics: Necessary But Not
Sufficient”, in Business Ethics: A European Review, 2008, vol. 17, no. 4, p. 405; Pablo Ruiz,
Ricardo Martinez, Cristina Diaz and Job Rodrigo, “Level of Coherence Among Ethics Pro-
gram Components and Its Impact on Ethical Intent”, in Journal of Business Ethics, 2015, vol.
128, no. 4, pp. 725–742.
58
Jennifer J. Kish-Gephart, David A. Harrison and Linda Klebe Treviño, “Bad Apples, Bad
Cases, and Bad Barrels: Meta-Analytic Evidence About Sources of Unethical Decisions at
Work”, in Journal of Applied Psychology, 2010, vol. 95, no. 1, pp. 1–31.
59
Webley and Werner, 2008, p. 406, see above note 57.
60
Ibid.
61
Ibid.
62
Ibid.
63
Ibid.

code addresses employee behaviour, but excludes important decision-

makers within the organisation. 64
As explained above, the ICC’s existing framework goes a long way
in addressing specific concerns which may arise during the course of a staff
member’s responsibilities, as well as providing clarity in respect of the
broader ethical commitments that the ICC comes to expect from its associ-
ates. Additionally, the existing framework is non-discriminatory, in the
sense that Article 1.2 of the Staff Regulations is made equally applicable to
each and every one of the ICC’s staff, irrespective of their role within the
organisation.
The next consideration, then, is what Webley and Werner call a “lack
of embedding”. 65 The authors explain that a gap between practice and poli-
cy emerges when an ethical code is not effectively embedded or communi-
cated to the organisation. Simply put, they say, “it is not sufficient to send a
booklet to all staff and expect them to adhere to its contents”. 66 The im-
portance of ensuring that an ethical code is embedded within an organisa-
tion cannot be understated.
In 1994, the US-based Ethics Resource Centre published its first Na-
tional Business Survey. 67 This survey relied on feedback from approxi-
mately 4,000 employees in that country. It found that companies with eth-
ics policies clearly expressed through ethics programmes showed positive
upturns in ethical compliance. A negative response was attached to compa-
nies which had communicated ethics policies but omitted the expression
thereof through proper ethical programmes. 68 The clearest conclusion to be
drawn from this report, then, was that the existence of a code without a
supporting ethics programme only increases organisational awareness of
ethical issues, but does not go far enough in reducing the incidence of ethi-
cal breaches. 69
64
Ibid, citing Brian J. Farrell and Deirdre M. Cobbin, “A Content Analysis of Codes of Ethics
in Australian Enterprises”, in Journal of Managerial Psychology, 1996, vol. 11, no. 1,
pp. 37–55.
65
Ibid.
66
Ibid.
67
Rebecca Goodell, Ethics in American Business: Policies, Programs and Perceptions Report
of a Landmark Survey of U.S. Employees, Ethics Resource Center, Washington, DC, 1994.
68
Ibid.
69
Ibid., p. 37.

This finding was repeated in a 2004 Canadian study. 70 This study re-
volved around 57 interviews of employees and managers of four Canadian
companies in respect of the effectiveness of codes of ethics within their
organisations. On the back of this conclusion, the author of this study went
on to suggest that “the mere existence of a code will be unlikely to influ-
ence employee behaviour” and that companies which “merely possess a
code might legitimately be subject to allegations of window dressing”. 71
The outcomes of these studies suggest that to bolster the probability of eth-
ical compliance within an organisation, that organisation must supplement
its ethical code – or in the case of the ICC, the existing constellation of
codes of conduct – with an immersive, formal programme that ingrains its
ethical commitments into the consciousness of the Court’s staff. On this
point, structure and function are clearly interlinked. As suggested else-
where, an expressly virtues- or values-based code may hold more promise
than duty-based rules as ‘conversation-starters’, and not ‘conversation-
enders’ at the ICC, where staff are drawn from different ‘home’ legal sys-
tems and legal cultures. 72
Another issue that does seem to arise, however, is in relation to what
may be limited disciplinary action associated with breaches of the ICC’s
existing codes of conduct. This is particularly true in relation to the OTP’s
Code of Conduct. 73
On 21 July 1998, the late Chief Justice of South Africa – the first of
the democratic era – Ismail Mahomed, gave a speech to the International
Commission of Jurists in Cape Town. He explained how, absent the exer-
cise of the apparatus of the State in enforcing the orders of courts, they
“could easily be reduced to paper tigers with the ferocious capacity to snarl
and to roar but no teeth to bite and no sinews to execute their judgments
which may then be mockingly reduced to pieces of sterile scholarship,
toothless wisdom or pious poetry”. 74
70
Mark S. Schwartz, “Effective Corporate Codes of Ethics: Perception of Code Users”, in
Journal of Business Ethics, 2004, vol. 55, no. 4, pp. 323–343.
71
Ibid.
72
See Salim A. Nakhjavani, “ICC Statute Article 45”, Lexsitus Lecture, CILRAP Film, 28
September 2017, Johannesburg (www.cilrap.org/cilrap-film/45-nakhjavani/).
73
74
Ismail Mahomed, “The Independence of the Judiciary”, in South African Law Journal, 1998,
vol. 115, no. 4, pp. 658-667.

In this same vein, an ethics charter that lacks a disciplinary element,

which imposes corrective. sanctions upon those who breach its provisions
will be nothing more than “toothless wisdom” (or “pious poetry”, depend-
ing on one’s cynicism). The need for such measures for the proper imple-
mentation of an ethics code within an organisation is widely recognised. 75
Whilst some of the existing codes of conduct (such as the Code of
Professional Conduct for Counsel) go into significant depth as to how
breaches of that code ought to be dealt with, others (such as the OTP’s
Code of Conduct) only go so far as extending a right to the Prosecutor to
impose appropriate disciplinary measures against members of that office
who are found to have breached its provisions. 76 This is problematic when
one considers how this regime would function in the instance that the mis-
conduct flows from either a direct instruction from the Prosecutor, or worse
still, is conducted by the Prosecutor her- or himself. 77 This lacuna in the
OTP’s Code should be promptly addressed, as it provides an unwelcome
‘impunity-gap’ on the ethical plane.
We now turn to impediments to the implementation of an organisa-
tion’s “moral message” at the level of corporate culture. 78
In 2005, a second US National Business Ethics Survey found that
although the enactment of formal ethical policies did impact ethical out-
comes within participating organisations, the outcomes of those policies
were also determined by the culture which prevailed within those same or-
ganisations. 79 In light of this, Webley and Werner 80 sought to distil the fac-
tors which hinder the proliferation of ethical culture within organisations.
Their research found that the following points were particularly significant:
a) a lack of commitment of top management; b) pressure to meet targets;
and c) a fear of retaliation. 81
75
Timothy L. Fort, “Steps for Building Ethics Programs”, in Hastings Business Law Journal,
2005, vol. 1, no. 1, p. 201.
76
OTP Code, para. 75, see above note 16.
77
78
79
Ethics Resource Center, National Business Ethics Survey – How Employees View Ethics in
Their Organizations 1994–2005, 2005, Washington, DC.
80
81
Ibid.

The first point is derived from a study conducted in 1999, 82 wherein

10,000 employees from across six different American corporations were
interviewed about their experiences with the ethical codes and programmes
put in place by their employers. The outcome of this study suggested that
“top management commitment was important to the scope and control ori-
entation of corporate ethics programmes”, and that “such commitment was
the only factor that was strongly associated with having a programme that
is orientated towards shared values”. 83 These findings, according to Webley
and Werner, suggest that a top-down approach to ethics is an important
component of developing a culture of ethics within an organisation. 84
As suggested elsewhere, the OTP’s Code provides a useful example
of embedding this top-down approach, because of the express and height-
ened duty on the Prosecutor and Deputy Prosecutors to provide “an impec-
cable example” to the staff of that Office, and to provide “appropriate guid-
ance, direction and support in the promotion and cultivation of the stand-
ards expected of the Office”. 85
The second point was borne out of an ethics survey conducted by the
American Management Association in 2005. 86 All 1,000 respondents in this
survey were asked “what they considered to be the factors that are most
likely to cause people to compromise an organisation’s ethical standards”. 87
In response, approximately 70 per cent of them referred to the “pressure to
meet unrealistic business objectives/deadlines” as being a major factor in
this regard. 88
82
Linda Klebe Trevino, Gary R. Weaver, David G. Gibson and Barbara Ley Toffler, “Manag-
ing Ethics and Legal Compliance: What Works And What Hurts”, in California Manage-
ment Review, 1999, vol. 41, no. 2, pp. 131–151.
83
Ibid.
84
85
See OTP Code, para. 15, see above note 16; see also Salim A. Nakhjavani, “The Origins and
Development of the Code of Conduct” in Bergsmo, Klaus Rackwitz and SONG Tianying
(eds.), Historical Origins of International Criminal Law: Volume 5, Torkel Opsahl Academ-
ic EPublisher, Brussels, 2017, p. 961 (https://www.toaep.org/ps-pdf/24-bergsmo-rackwitz-
song).
86
The Ethical Enterprise – Doing the Right Things in the Right Ways, Today and Tomorrow (A
Global Study of Business Ethics 2005-2015), American Management Association, New York,
2006; Raymond Baumhart, An Honest Profit – What Businessmen Say About Ethics in Busi-
ness, Holt, Rinehart and Winston, New York, 1968.
87
88
Ibid.

This pressure is presumably even more pronounced at an organisa-

tion such as the ICC, which has been tasked with the onerous mandate of
prosecuting “the most serious of crimes of concern to the international
community as a whole”. 89 ICC staff, then, are burdened with achieving an
objective that transcends that which has been cited by the respondents in
the American Management Association’s study. This is because their objec-
tives go beyond the realm of commercial enrichment, and, instead, require
them to seek justice for victims of gross violations of rights, and for the
international community as a whole. In this sense, they carry the weight of
the world’s expectations on their shoulders. The weight of this expectation
will no doubt be an important factor in determining whether or not the
ICC’s organisational culture is capable of being set up in a manner that up-
holds the stringent duties contained within the existing ethical framework,
while allowing the Court’s staff to execute their mandate effectively to-
wards the international community. The three examples of ethical lapses
we considered earlier in this chapter are, to our minds, clear indication that
the ICC – or the OTP, at the very least – has previously found itself in a
position whereby it was able to justify an ethical breach in order to achieve
a specific objective: the successful prosecution of persons accused of hav-
ing committed crimes that “deeply shock the conscience of humanity”. 90
The question that arises here is how to ameliorate the risks that are
associated with the pursuit of these weighty objectives. One suggestion is
to characterise ethical conduct as an objective in itself. This approach mir-
rors Webley and Werner’s recommendation, which puts ethical considera-
tions at the centre of corporate strategy as a means of promoting an ethical
culture within an organisation. 91 This approach holds promise particularly
for those organs and actors within the ICC directly responsible for criminal
proceedings that preserve the rights of the charged person or the accused,
both substantively and procedurally.
An ethical breach by an actor at the core of criminal proceedings
may itself vitiate the fairness of those proceedings. Placing emphasis on
ethical considerations as an objective in themselves, – as ends, not means –
has the potential of not only ensuring that ICC staff are dissuaded from
‘cutting corners’ to achieve their broader goal of pursuing international jus-
89
90
ICC Statute, Preamble, 2nd recital, see above note 37.
91

tice, but also ensuring that their progress towards that goal is unimpeacha-
ble.
This last suggestion aligns closely with the findings of the 2004 Eth-
ics at Work survey of the UK-based Institute of Business Ethics. 92 About a
third of respondents who admitted to witnessing unethical conduct at their
workplaces revealed they had chosen not to disclose their observations.
This was predicated on the fact that they felt that “speaking up” would
jeopardise their job security or place them at odds with their colleagues. 93
Indeed, having to work under a climate of fear or retaliation naturally
serves a chilling factor against the disclosure of ethical breaches by persons
operating within that workspace. The ICC, like all workplaces, is likely to
have cultivated a culture whereby its staff are somewhat hesitant to make
such disclosures, whether it be out of fear of castigation or otherwise.
One potential solution that had been advanced during the drafting
process of the OTP Code of Conduct, but now finds no expression in the
final version of that Code, 94 or of the Code of Professional Conduct for
counsel – nor, indeed, in other codes – is the explicit recognition of a fea-
ture of a legal culture familiar in all major legal systems. In the practice of
law as a liberal profession, or as an independent practitioner (such as bar-
risters, advocates and the like), a great deal of ethical decision-making is
premised on seeking informal – but well-informed – advice from more ex-
perienced practitioners, on a collegial basis of confidentiality. The informal
conversation and advice, once rendered, are consigned to the oubliette.
Among independent legal practitioners, this culture only ‘works’ where the
more senior practitioner is committed to the independence and integrity of
the profession above personal interest.
There is no substantial reason, in our view, why such a channel can-
not be brought ‘in-house’ at the ICC, and for it to exist outside a staff
member’s management line. It is an advisory role that demands a certain
calibre of person, to be sure; but the same check on possible abuse that has
embedded this aspect of ethical practice among independent bars and law
societies across legal cultures – that is, a longstanding, unwavering com-
mitment to the institution and to the rule of law – must be expected of the
92
S. Webley and P. Dryden, Ethics at Work: A National Survey, London: Institute of Business
Ethics, 2005.
93
Ibid.
94

international civil service. It bears noting that the calibre of person with the
demonstrated capacity to consistently subordinate individual to institutional
interest – the likes of Noblemaire and Flemming – is not some kind of in-
accessible hero of virtue. That person should be nothing other than an ordi-
nary staff member of the Court.
Moreover, there is a profound, but often unarticulated ethical dimen-
sion to the first principles set out in the ICC Staff Rules: First, “[s]taff taff
members of the Court are international civil servants. Their responsibilities
as staff members of the Court are not national, but exclusively internation-
al”; 95 and second, “[t]he interest of the Court and the obligations that staff
members have towards it shall always take precedence over their other in-
terests or ties”. 96
22.4. Double Deontology: Desperately Seeking Coherence
The problem of vertical double deontology, as between ethical standards
binding on legal practitioners at the ICC and in their home States, is not
particularly vexing, at first glance. The Code of Professional Conduct for
Counsel sidesteps the problem by framing it only in terms of enforcement –
the proverbial ‘pain point’. That is, the disciplinary regime applicable un-
der the Code operates “without prejudice” to the “disciplinary powers” of
any other “disciplinary authority”. 97 There is a rule of complementarity sui
generis that suspends proceedings before the ICC’s disciplinary authority
in cases where a national authority is acting with respect to the same mis-
conduct, unless the national authority is “unwilling or unable to conclude
the disciplinary procedure”. 98
The unstated assumption is that a breach of standards matters less
than when one has not yet been caught, and absent the prospect of conflict-
ing disciplinary measures. The approach has a practical basis, nevertheless,
because the rule of thumb, across various national jurisdictions, is that
counsel appearing in a foreign or international court must uphold all the
ethical rules by which they are bound. It is only when their conduct is for-
mally called into question that the Code applicable at the ICC needs to pro-
vide a deadlock-breaking mechanism.
95
ICC, Staff Rules of the International Criminal Court, 27 July 2015, Rule 101.1 (‘Staff Rules’)
(https://www.legal-tools.org/doc/2a5274/).
96
Ibid., Rule 101.3.
97
Ibid., Rule 101.3.
98

What this Code conspicuously fails to do is to guide counsel on their

conduct when the substantive ethical standards of their home jurisdiction
and that of the Court conflict. A simple but real example is where counsel
are subject to a referral rule in their home jurisdiction, but then accept a
contractual appointment as counsel at the ICC without formally suspending
their legal practice in their home jurisdiction, where they continue to repre-
sent clients and take instructions. Are counsel entitled to insist on a brief
from the ICC to be channelled through a solicitor or attorney in their home
jurisdiction? Such a brief is unlikely at best. Would counsel then be breach-
ing the referral rule to act for a client facing trial at the ICC?
Horizontal double deontology – as between multiple, overlapping
ethical standards applicable at the ICC – is a significantly harder problem.
Axiomatically, when overlaid as a general set of standard on the existing,
more specific codes, an ethics charter creates an overlap by design. The
question is what to do about it.
The OTP provides the most useful example here, because it is guar-
anteed functional independence by the Rome Statute. Should an OTP staff
member disclose actual or imminent misconduct to a person outside the
OTP because of their overarching duty to the “interest of the Court” and
their “obligations towards it” under Staff Rule 101.3? The OTP’s Code it-
self is clear, in Article 12: “When given reason to believe that a departure
from these standards has occurred or is about to occur, Staff members shall
report the matter to their supervisors or the Prosecutor”.
Resorting to the language of rights and duties starts from an assump-
tion of competition: the duty to act in the interest in the Court is weighed
against the duty to report within the OTP reporting line. This is singularly
unhelpful, because there is no clear basis on which to ‘balance’ these duties
and reach a concrete ethical decision and course of action. A more useful
approach may well be to seek coherence and to inculcate a culture of ethi-
cal behaviour centred on the requirements of a coherent life.
Despite the sustained attention of legal theorists, the concept of co-
herence (especially in legal argument) has proven elusive. In a useful sur-
vey of arguments on coherence in legal theory, Bertea observes that:
While there is wide agreement among contemporary legal
theorists on the characterization of coherence in the negative
as lack of inconsistencies, it is still a question how coherence
might be defined in positive terms. Coherence is generally
held to be something more than logical consistency of propo-

sitions. But it is not entirely clear what this ‘something more’

amounts to. Thus, coherence is often described in figurative
language as the equivalent of ‘hanging together’, ‘making
sense as a whole’, ‘cohesion’, ‘consonance’ and ‘speaking
with one voice’. A coherent set might then be described as a
‘tightly-knit unit’. Which makes coherence a ‘kind of internal
interconnectedness’, a ‘plausible connection’ that is not lineal
and asymmetrical but circular and symmetrical: the elements
of a coherent structure are mutually supporting and reinforc-
ing. 99
We understand coherence this way: rights and duties may conflict.
But values and qualities of character do not, if one accepts that each ex-
presses a universal human potentiality of a single human being. How, then,
might staff members’ duty to act in the interests of the Court and their duty
to report misconduct within the OTP reporting line begin to cohere?
What emerges immediately is that their ethical reasoning will not rest
on abstract conceptions of their duties. They will interrogate the values un-
derlying Staff Rule 101.3 and Article 12 of the OTP Code, in respect of the
very specific, finely-grained facts of the misconduct of which they are
aware. They will take the OTP Code not as a series of rules, but as a cohe-
sive whole, including its standards on faithful conduct, which include the
following four illustrative examples of what it means to fulfil “the trust re-
posed in the Office of the Prosecutor”:
(a) loyalty to the aims, principles and purposes of the Court;
(b) acting within the boundaries of inherent or delegated
powers and functions;
(c) due deference to the authority of the Prosecutor [...];
(d) respect for the principles of this Code, and a concerted
effort to prevent, oppose and address any departure there-
from.
At that point, they will take their decision, whatever it might be – one
which any reasonably objective disciplinary authority would characterise
as a considered, responsible, mature choice.
99
Stefano Bertea, “The Arguments from Coherence: Analysis and Evaluation”, in Oxford
Journal of Legal Studies, 2005, vol. 25, no. 3, pp. 371–72 (footnotes omitted).

22.5. What Might the External Auditor Have Hoped to Achieve?

The objective of the external auditor has been outlined in significant detail
above, but for the sake of structure, it is probably worth summarising.
Simply, the external auditor seeks to supplement the existing statutory
framework with a “moral message”. This “moral message” should echo the
“fundamental values” contained in Article 1.2 of the Staff Regulations. Ac-
cording to the external auditor, the essence of these values is captured by
the listed points, those being “general rights and obligations, confidentiality,
honorary distinctions, gifts or remuneration, conflicts of interest, employ-
ment and activities outside the Court, and use of the Court’s property”. 100
The external auditor believes that the proposed ethics charter ought to ad-
dress staff conduct with respect to said points. The existence of guidelines,
which address these points is the barometer by which the need for an addi-
tional ethics charter ought to be judged.
We have tried to show how the existing ethical framework – both its
general statements (as in the Staff Rules) and its details in specific codes –
covers and surpasses what could be achieved practically by a single ethics
charter covering all staff of the ICC. The real question is implementation,
and the problem is complex. It calls for an honest reading of reality at the
level of culture – beyond the totting up of complaints filed and complaints
resolved. This is important to interrogate the ways that ethical standards are
modelled by officials and senior staff; how these standards are embedded in
staff orientation and ongoing training; the formal and informal approaches
that staff might and actually do take to reach ethical decisions; and the na-
ture, depth and persistence of conversations on ethics among the staff of
the Court, both within and between its organs.
100
Audit report, para. 239, see above note 1.

PART V:
INTEGRITY AND THE LENS OF CASES
23
______
Reflections on Integrity in
the Prosecution of International Cases
Teresa McHenry and Ann Marie Ursini *
23.1. Introduction
Integrity in international justice – what is it, and how do we get it? And
why is the issue so vexing, particularly if everyone agrees that it is im-
portant? People would likely agree on the key means to achieve integrity:
leadership; culture; training; resources; and accountability. But integrity in
international justice is impossible to define and ultimately achieve without
a clear sense of what these ideals should look like in practice, especially
when practitioners and judges from different domestic legal systems must
operate together, often in newly-created international and hybrid legal sys-
tems.
As a prosecutor with over 30 years of experience with international
crimes, I 1 bring a pragmatic, rather than an academic or theoretical, ap-
proach to the subject of integrity in international criminal cases. For most
of my career, I have dealt with international crime and justice, mostly at the
United States (‘US’) Department of Justice (‘DOJ’) but also for five years
*
Teresa McHenry is the head of the Human Rights and Special Prosecutions Section
(‘HRSP’) within the Criminal Division of the US Department of Justice. She previously
served as the head of the Domestic Security Section, the head of the Alien Smuggling Task
Force, a trial attorney in the Organized Crime and Racketeering Section, and an Assistant
US Attorney for the District of Columbia, all within the US Department of Justice. From
1994 until 1998, she served with the Office of the Prosecutor, International Criminal Tribu-
nal for the former Yugoslavia. She serves as a member of the Commission for the Control of
Interpol’s Files, filling the position of a lawyer with human rights expertise. She has a B.A.
magna cum laude, from Rice University and a J.D., magna cum laude, from Harvard Law
School. Ann Marie Ursini is a Senior Trial Attorney at HRSP, where she has worked since
2013. She previously practiced in the US Attorney’s Office for the Northern District of Cali-
fornia and in the Office of the Prosecutor at the International Criminal Court. She earned a
B.A., magna cum laude, from California State University, Stanislaus, a J.D. from Santa
Clara University School of Law, where she served as Editor-in-Chief of the Santa Clara
Journal of International Law, and an LL.M. with distinction in National Security Law from
Georgetown University School of Law.
1
First person pronouns hereinafter reference Teresa McHenry.

at the Office of the Prosecutor (‘OTP’) of the International Criminal Tribu-

nal for the former Yugoslavia (‘ICTY’), starting in 1994, when the Tribunal
was just beginning. For the last eight years, I have led the Human Rights
and Special Prosecutions Section at the US DOJ, where I supervise trial
attorneys prosecuting cases in the US justice system involving international
crimes.
In my career, and particularly at the outset of the ICTY, colleagues
and I have grappled with questions of what integrity means in the context
of international justice. Most obviously, prosecutors must make difficult
choices on who to prosecute and what charges to bring, and those big deci-
sions frequently garner intense attention from outside observers. But prose-
cutors, judges, and defence counsel must also navigate myriad challenges
involving personnel, politics, investigative practices, witness issues, disclo-
sure obligations, and more. These challenges can be difficult enough on the
domestic stage; internationally, their complexity is compounded.
My goal is to address some of the questions posed in the policy brief
on which this project is based 2 from the perspective of a prosecutor, and to
provide examples and pose questions related to real-world ethical issues
that arise in the prosecutions of international crimes, including how inter-
national efforts can involve challenges which are unique and different from
most domestic cases. Hopefully, illustrating these challenges will encour-
age future efforts to enhance integrity to similarly focus on practical ques-
tions and areas for improvement.
23.2. International Justice: Inside and Outside Perspectives
The nascent years of the ICTY were exciting and fascinating, but also in-
credibly challenging. It would be hard to overstate how little we knew and
had to work with in terms of structure at the time.
The ICTY generated great interest from non-governmental organiza-
tions (‘NGOs’), scholars, academics and others, many of whom wanted to
do work that would assist persons working at the Tribunal. I remember, for
example, a period in which dozens of published articles were written with
the intent of making the legal case for charging rape as a war crime. But
from my vantage point, the articles were unhelpful, because everyone I
2
No. 93 (2018), Torkel Opsahl Academic EPublisher, Brussels, 2016 (http://www.toaep.org/

23. Reflections on Integrity in the Prosecution of International Cases
knew at the Tribunal already agreed with their premise. I am not aware of
any prosecutor at the Tribunal who disagreed that rape could be a war
crime, a crime against humanity, or a method of genocide; in fact, we
charged rape as a war crime early in the Tribunal’s work. 3
My fellow prosecutors and I at the ICTY were not struggling with
whether rape could be a war crime. But we were struggling with numerous
practical, procedural and legal issues that arose in the course of prosecuting
this and other international crimes. We could have used help from academ-
ics and others as we struggled to go beyond what we knew from our do-
mestic legal systems. For instance, an overview of how different countries
balance a defendant’s right to information about a rape victim’s medical
history with a victim’s right to privacy about intimate medical issues would
have been useful. I worked on the first multi-defendant case at the ICTY, in
which the defendants sought separate trials, and it would have been valua-
ble to have an analysis of how different domestic systems, particularly non-
jury systems, determined when severance of co-defendants’ trials did or did
not contribute to the integrity of a case and fairness to the defence.
Since my time at the ICTY, there have been significant efforts to ad-
dress these and other challenges faced by the courts. I hope to further this
effort by sharing, from a practitioner’s perspective, some of the practical
challenges we face in bringing integrity to the work of international justice.
23.3. Investigations and Resources
In international justice, even the initial questions of who and what to inves-
tigate are tremendously complicated. At the ICTY, there was much discus-
sion and internal debate about who should be investigated and charged, and,
crucially, how resources should be allocated to various investigations. Eve-
ryone wanted to be fair and lead a process with integrity. But the facts were
not fully known, the conflict was ongoing, and the Tribunal was working to
survive such that it needed to demonstrate tangible results in the short term.
There were hard questions to grapple with: what does fairness mean in the
context of international investigations and charging? How do we stay true
to the ICTY’s mission of providing accountability for high-level perpetra-
tors? How could we deter and prevent future crimes? Further, how did our
goals interact with political realities?
3
International Criminal Tribunal for the former Yugoslavia (‘ICTY’), Prosecutor v. Delalić et
al. (‘Čelebići case’), Indictment, 19 March 1996, IT-96-21-T (https://www.legal-tools.org/
doc/a40836/).

The mission of the ICTY, and of international justice mechanisms

generally, is to provide accountability for the highest-level perpetrators of
atrocity crimes – those who otherwise would likely benefit from impunity.
As has been much-discussed since, the OTP decided to pursue relatively
lower-level targets at the outset. On its face, this decision did not meet the
purpose of the Tribunal, namely to hold accountable those persons at the
highest levels of responsibility. But the hope was that this choice would
allow prosecutors to demonstrate the Tribunal was active and develop the
evidence and expertise needed to work up the chain of command and
charge persons at higher levels. Ultimately, the ICTY was able to do just
that, even though at the beginning of the Tribunal, critics of the approach
wondered if focusing on these lower-level defendants was a wise use of the
Tribunal’s resources. 4
Resource limitations necessitate hard decisions about where to focus
investigations, in both domestic and international systems. In my current
position at the US DOJ, my office and investigators with whom we work
are constantly evaluating how to allocate limited resources, with one ten-
sion being how many resources we devote to situations in which there is a
significant crime base but where it may be difficult to get jurisdiction over
a subject, versus situations where we have fewer or less serious crimes, but
where there is a subject known to be in the US and who could be arrested.
Resource limitations are even more complex on the international
stage, where investigations often require evidence or access to information
only available through the co-operation of a State Party, which may have
strong disincentives to be helpful. In international justice, there is an expec-
tation that prosecutors will fully and fairly review and consider evidence of
crimes committed by all parties to a conflict, but it is rare that prosecutors
of large-scale international crimes have the same level of access to evi-
dence with respect to different parties to the conflict.
4
The question of how senior the perpetrator must be to merit attention and resources from an
international court is a recurring one. Interesting, the International Criminal Court OTP Stra-
tegic Plan issued after the CILRAP project conference in The Hague in December 2018,
contains language embracing, in some circumstances, “a strategy of building upwards by fo-
cusing on mid-level or notorious perpetrators first, with the aim of reaching the level of the
most responsible persons at a later stage”. International Criminal Court, Office of the Prose-
cutor, Strategic Plan 2019-2021, 17 July 2019, pp. 19–25 (‘ICC-OTP Strategic Plan 2019-
2021’) (https://www.legal-tools.org/doc/7ncqt3).

Initially, for example, the Bosnian Serbs were not co-operating with
the ICTY, even for investigations involving Bosnian Serb victims. Later,
when the OTP sought evidence from the Bosnian government – a party os-
tensibly co-operating with the OTP – regarding responsibility for certain
crimes committed on the Bosnian side, we found the co-operation less than
robust. (Ultimately, much later, we got the information from the Bosnian
government and determined it would have been very helpful to the prose-
cution’s case, but we were already well into trial and the judges found it
untimely and refused to allow it into evidence.)
Co-operation by States is still a major challenge in international jus-
tice. These dynamics raise hard questions – how strongly, and using what
means, should prosecutors push for assistance? How long do you wait for a
State’s co-operation before deciding to bring charges based on what evi-
dence you have in hand? Is it ‘fair’ that persons who are nationals of a co-
operative State will be punished, but those from an uncooperative State
may not be because the State will not provide important evidence?
23.4. Witnesses
During investigations at the ICTY, the OTP faced a number of challenges
regarding witnesses during the investigation.
23.4.1. Witness Preparation
One of the most obvious and frustrating examples of how definitions of
integrity varied and conflicted among attorneys from different legal sys-
tems was in the preparation of witnesses prior to testimony. I remember
numerous discussions about this with ICTY colleagues from different
countries. Prosecutors from the United States offered that, in our domestic
cases, we would be derelict if we failed to meet with witnesses before they
testified to tell them what kinds of questions to expect, answer questions
they had about the proceeding, and, depending on the anticipated nature
and length of the witness testimony, conduct mock examinations. 5 One of
5
Some practitioners from systems where witness preparation is not routine mistakenly be-
lieve this preparation is akin to coaching or scripting a witness. I would never instruct a wit-
ness what to say (other than to listen to the questions closely and tell the truth) or provide a
script of how they should respond to my questions. The goals of preparing a witness before
their testimony are to ensure the witness had an opportunity to hear and understand the types
of questions I planned to ask in a low-pressure environment, where we could work out dif-
ferences in understanding or, in some cases, language barriers, before the witness was faced
with the intimidating challenge of speaking in court. Additionally, in an adversarial jury sys-

my Australian colleagues said that if they did the same thing in their do-
mestic system, their actions would be frowned upon; another colleague,
from Europe, said preparing a witness in this way, which in the US would
be considered standard practice, would be a criminal offence!
Like so many things at the ICTY, we had to figure out workable solu-
tions that met our respective definitions of integrity in the proceedings
along the way. For instance, I remember the first evidentiary hearing held
at the ICTY for judges to hear witnesses and confirm an indictment, in the
Nikolić case. 6 The judges informed the prosecutors that we should not
‘prepare’ the witnesses by talking to them about their testimony in any way.
For this type of hearing, there is no defendant or defence counsel present,
and there is no cross-examination, so we decided not to object to the judg-
es’ instructions, and we called witnesses to testify without preparing them
beforehand. The first day of witness testimony was a total mess. Witnesses
did not understand what was being asked, they wanted to talk about things
other than what we asked, and the judges were extremely frustrated by the
amount of irrelevant testimony and wasted time. After one day of testimony,
we got word that the judges had changed their minds and now wanted us to
prepare our witnesses before they testified. This was only one hearing in
one case, and I am certain that other judges and other courts have and will
handle these issues differently; I wonder to what extent international courts
have tried to standardize expectations in terms of witness preparation or
offered guidance to attorneys, and whether they have been able to achieve a
practical, workable balance.
23.4.2. Witness Statements
Another complexity that frequently arises in international cases is the issue
of multiple witness interviews and statements, taken by NGOs, journalists,
activists, domestic and international investigators, intermediaries and oth-
ers. An NGO active in Liberia recently told me that they are aware that
some witnesses have been interviewed by persons from as many as eight
tem, preparation helps prosecutors ensure they do not inadvertently ask questions that would
elicit testimony precluded by our rules of evidence and allows prosecutors to assess the
strength of their case. There is a saying among American attorneys: never ask a question in
court to which you do not know the answer. Working with witnesses ahead of a court ap-
pearance is, in our system, an essential part of an attorney’s preparation, and we do a disser-
vice to our client and the witness if we do not adequately prepare.
6
ICTY, Prosecutor v. Nikolić, IT-94-2.

different countries. The existence of multiple prior statements taken from

different investigating entities presents a host of issues, including challeng-
es in evaluating the credibility of a particular witness if their statements do
not perfectly overlap. The quality of the statements may vary dramatically,
depending on the training and background of the interviewer, the quality of
the translation, the timing of the interview, who is present for the interview,
and other factors. The existence of multiple prior witness statements cre-
ates problems for prosecutors, who must carefully consider their disclosure
obligations when determining whether to obtain copies of statements taken
by others, particularly when the prosecutors do not know the circumstances
under which other statements were taken and how reliable or accurate they
are, and understanding that we may have disclosure obligations for any
statements.
23.4.3. Witness Security and Privacy
Witness security is among the biggest challenges prosecutors face, and we
spend tremendous time trying to ensure that witnesses or their families are
not unsafe because of us, or at the very least that witnesses understand the
risks and resources we can and cannot provide. There is a natural tension
between our obligation to disclose information to the defence and the need
to conceal, even if temporarily, information that can put witnesses at risk.
In my domestic system, prosecutors, defence counsel and judges are famil-
iar and comfortable with these precautions, such as protective orders,
which limit how the defence can use or distribute sensitive information the
government has disclosed or which authorize redactions of personally iden-
tifying information contained in the disclosure. Defence counsel take these
orders very seriously, as they understand their professional reputations will
be harmed and they may be subject to court-imposed sanctions if they do
not comply with protective orders.
In most systems, there is also the option of filing a document under
seal, so that the parties and the judge can see it but it is not open to the pub-
lic, usually based on some showing from the filing party that it is too sensi-
tive to be public. Courts and their staff have routine procedures for dealing
with sealed filings, so the parties can generally rely on the fact the contents
of sealed filings will not become public. Internationally, though, mecha-
nisms for protecting information has not been a smooth process. At the IC-
TY, in the Čelebići trial, we had sensitive lists of protected witness names
publicly disclosed in a Bosnian newspaper, and we saw sensitive medical

information disclosed in open court. I know that later ICTY cases and other
tribunals have struggled with and continue to struggle with these issues,
particularly given the limitations of sanctions for attorneys who do not
comply with court rules and orders in the international context.
23.5. Discovery and Disclosure
In my experience, prosecutors take their disclosure obligations very seri-
ously and, next to witness security issues, this is one of the biggest chal-
lenges for prosecutors. Disclosure is particularly difficult in large fact- and
document-intensive cases like those prosecuted at the international level.
On large cases, prosecutors need strong case management support person-
nel and appropriate technology up to the task of organizing and redacting
an incredible volume of documents. In some cases, a prosecutor may not
even be able to review every piece of paper (or PDF page) in their case, but
must rely on processing information by type and source.
One consequence of the substantial resources needed to handle dis-
closure obligations is that prosecutors must exercise discretion in limiting
the information they themselves obtain. Prosecutors used to seek more
medical records than we do now, but because of disclosure obligations and
privacy concerns of victims, we now are more discerning. In the case of
electronic evidence, the prevalence of technology has exponentially in-
creased the volume of information available. For instance, in my office, a
recent search warrant for one social media account for a period of only a
few months returned over 10,000 pages of content, most of which required
costly and time-consuming translation. The volume of available infor-
mation combined with resource constraints force prosecutors and investiga-
tors to narrowly tailor their requests in order to return a manageable
amount of information, particularly if the records must be translated or re-
dacted to remove sensitive information, such as witness addresses. As we
work to be discerning, however, we have to be careful to make sure that we
are not failing to obtain or failing to disclose information important to the
case.
23.6. Institutional Ethics Advice and Support
In order to perform a difficult job with integrity, lawyers, staff and others
working in international criminal justice must have resources available to
help them ensure they understand and maintain high standards of ethical
conduct, and that there are mechanisms to report or deal with unethical be-

haviour. As the concept paper of the project indicates, it is important for

international institutions to create institutional measures to build “cultures
of integrity” within the courts. 7 But what do and should such measures
look like and how can we “give maximum effect to existing ‘integrity
mechanisms’, including oversight mechanisms”? 8
In my current position at the US DOJ, I am lucky to have access to
several officers and advisors within the Department whose job it is to help
maintain the integrity of our prosecutions. One resource is a designated
ethics officer within my Division. For certain matters, the ethics officer has
a formal role, such as approving my ability to present at conferences and
reviewing the public financial disclosure forms I have to fill out every year
detailing the financial assets my husband and I have and our financial
transactions over last year. She helps me and other attorneys in the Crimi-
nal Division avoid actual or perceived conflicts of interest. She also advises
our attorneys of the legal restrictions applicable for certain political activity
prosecutors must avoid so as not to appear politically motivated or impar-
tial in their work. Just as important as her official role is her role as infor-
mal advisor. I can easily just call her to talk through a range of topics; she
has a store of practical knowledge about how persons have handled similar
issues in the past, and what the legal and ethical guardrails may be.
Additionally, DOJ attorneys have access to the Department’s Profes-
sional Responsibility Advisory Office (‘PRAO’), which advises attorneys
on professional responsibilities related to attorney’s authority to investigate,
litigate or provide legal advice according to Department guidelines and the
particular State ethics rules governing each attorney. Our office has fre-
quently consulted PRAO regarding planned investigative steps to ensure
we are complying with the patchwork of applicable ethical guidelines for
prosecutors, which depend on the State in which a particular attorney is
licensed and where he or she is practicing.
There are also persons to whom attorneys and staff can report inter-
nal problems, such as sexual harassment by colleagues. Additionally, vari-
ous ethics professionals provide required annual training for DOJ personnel
on topics including sexual harassment, ethical obligations in investigations,
discovery and disclosure requirements, and other topics vital to conducting
the work of the Department with appropriate standards of integrity. Further,
7
8
Ibid.

written guidance gives prosecutors parameters on when to charge or de-

cline cases, navigate and disclose conflicts of interest, and handle other
matters.
I do not know to what extent these models of having ethical expertise
within an institution can be or have been replicated in other systems, in-
cluding international systems, but I suspect we could all benefit from
shared best practices on an international scale.
23.7. Courtroom Conduct and Personnel
Another hard issue relating to trials and integrity is conduct in the court-
room. As the concept paper indicates, States Parties are generally responsi-
ble for the election of judges and prosecutors. 9 The responsibility is “im-
portant” and requires “vigilance”, since the “high officials of international
courts define the culture of integrity within their institutions”. 10 All would
agree that staffing – particularly for high-level and high-visibility roles,
including judges – is vital, but in practice, goals regarding personnel with
integrity and the necessary skills may not always be met. Further examina-
tion of best practices or new practical steps, be they additional disclosure
forms to identify possible conflicts of interests or mandated training, may
be helpful.
When I was at the Tribunal, we struggled with the conduct of one of
the judges who fell asleep during portions of the trial. During the trial,
prosecutors, defence counsel and, I believe, other judges were aware of the
situation. The defence did not raise it formally during trial but did raise it
on appeal. Ultimately, the Appeals Chamber acknowledged that video evi-
dence established that the judge was regularly asleep (one time for 30
minutes!) and that the judge’s conduct was inappropriate, but found that
appellants had failed to establish that the judge’s inattention caused them
actual prejudice, and so rejected the defence motion to dismiss. 11
On another occasion, several prosecutors were complaining among
themselves about a particular judge at the Tribunal, wondering how he got
appointed – it seemed obvious from his performance during proceedings
that he was not qualified to be a judge. One of my intrepid colleagues de-
9
Ibid.
10
Ibid.
11
Čelebići case, Appeals Chamber, Judgement, 20 February 2001, IT-96-21-A, paras. 625–49
(https://www.legal-tools.org/doc/051554).

cided we should look up his background online. As it turns out, his creden-
tials were incredibly impressive. We all looked at his resume, stunned into
silence, until one prosecutor spoke up: “I want fingerprints, because there
is no way that the judge here at the Tribunal is the same judge whose re-
sume we are reading”. Choosing appropriate judges, then, involves more
than finding a sterling resume.
Judges are not the only problem. International systems struggle to
consistently hire qualified, competent personnel at all levels. In my career
at the US DOJ, I have been on several hiring committees, and I know a
person’s resume is not always an indicator of how strong an employee they
will be, which is why we use in-depth reference checks, writing samples,
interviews and other means to evaluate candidates. Like so much else, hir-
ing is more complicated internationally. At some point during my time at
the ICTY, maybe because I had been vocal about the need to improve hir-
ing practices, I was drafted to serve on a few hiring committees. I learned
how incredibly hard it is, maybe even impossible, to conduct meaningful
reference checks for practitioners from other countries where you do not
know anyone, you do not know the system, and you do not know the cul-
ture. It is possible that some people are great at working in their own do-
mestic system, but that does not necessarily mean they will be a great fit
for an international justice system.
Because of how difficult it is to evaluate the strength of a candidate
from a different legal system, I have observed that it can be hard to get
hired by international bodies if you do not know someone already in the
system. I think this hurts the practice of international law and may lead to a
host of issues, including the lack of diversity and fundamental fairness. I
suspect this is not necessarily because people in hiring positions only want
to hire their friends, but that, in the absence of a hiring system that reliably
identifies good candidates, some believe the safest way to hire someone
you have some confidence in is to hire someone you already know, or at
least someone who knows someone you know.
I wonder whether a useful exercise would be to conduct further ex-
amination of practical steps to improve the hiring or appointments in all
parts of international justice. For example, should there be some sort of
international bar association group that could conduct more in-depth, edu-
cated and impartial vetting of candidates?
A final challenge that I think is worth mentioning, both because I saw
it at the Tribunal and I have seen it in my own system, has to do with how

institutions deal with problematic behaviour of staff members. Alcoholism,

drug abuse, sexual harassment and other problematic behaviour by and
among personnel happens, and it is important that we all continue to im-
prove on the ways we identify and respond to these issues.
In order for integrity to exist in an institution, there must be a culture
of ethical behaviour, and there must be resources for personnel in need. At
the US DOJ, we have a unit dedicated to assisting employees dealing with
substance abuse, caring for elderly relatives, arranging child-care, and a
host of other means of support and assistance. Additionally, we have per-
sonnel, both in and outside of an employee’s chain of authority, to whom
employees can report harassment, misuse of government resources, and
other problems. Nonetheless, we continue to struggle with these issues. We
need discussion and further thought on how we can create office cultures
and systems where employees can seek help and where problematic behav-
iour is appropriately reported and dealt with.
23.8. Conclusion
Achieving integrity in international justice raises complex, evolving ques-
tions, and I greatly appreciate the Centre for International Law Research
and Policy (CILRAP) and the International Nuremberg Principles Academy
for creating a forum for discussion. In my presentation at the Integrity in
International Justice conference in The Hague and in this chapter, I have
tried to highlight some of the practical concerns prosecutors and others face
while trying to maintain high standards of integrity in international justice,
and I have suggested persons outside of those justice mechanisms could
assist by focusing their formidable research and analysis on considerations
practical to those in the courts.
Attorneys and staff working in international entities face particular
challenges because they are trying to be effective outside of the judicial
system for which they were trained and outside their domestic culture and
norms. Having access to resources on comparative criminal law practices
and issues that are particularly complicated by virtue of being international
cases would be extremely helpful, as would efforts to create cultures of eth-
ics.
Integrity in international justice must mean integrity among and be-
tween its participants – prosecutors, defence counsel and judges – but also
in the functioning of the courts and systems themselves. New challenges
arise all the time, and those working inside these institutions can benefit

from the practical, topical analysis of outside observers. Several of the is-
sues I have addressed have already been the subject of much thought and
attention by those inside and outside the courts. 12 But with each new case,
each new judge, and each new practitioner, these issues arise in new and
different forms. The quest for integrity is perennial. I welcome the oppor-
tunity to share my thoughts and experience, and hopefully to encourage
practical efforts to improve things in the future.
12
For example, the recent ICC-OTP Strategic Plan identifies staff well-being as a key compo-
nent of the strategy. “Staff well-being” under the strategy includes, among other topics, gen-
der equality in recruitment, development, and leadership; ethics and standards of conduct,
including with regard to harassment; and reducing stress among the workforce, who may be
subject to secondary trauma. The prominent placement of staff well-being in the Strategic
Plan appears to indicate an acknowledgement that, for an institution to function with integri-
ty, its personnel must be treated with – and expected to demonstrate – integrity as well. ICC-
OTP Strategic Plan 2019-2021, pp. 27–28, see above note 4.

24
______
Individual Integrity and Independence of Judges:

The Akay Saga
Antonio Angotti, Basil Saen and Shan Patel *
24.1. Introduction
Judge Aydin Sefa Akay, the (former) Turkish judge on the Ngirabatware
bench at the International Residual Mechanism for Criminal Tribunals
(‘MICT’ or ‘Mechanism’), was arrested in the aftermath of the attempted
coup d’état against the Erdoğan Government. Accused of terrorism-related
offences, Akay was convicted by a criminal court of first instance on the
charge of being a member of the Fetullahist Terrorist Organization. He was
sentenced to seven years and six months of imprisonment and, consequent-
ly, lost his seat on the MICT roster. This chapter will present reflections on
the integrity of some individuals in one way or another involved in the non-
reappointment of Judge Akay. The Akay saga will, in other words, serve as
a practical case-in-point, providing a concrete integrity test.
The chapter will start by outlining the facts of the Akay situation,
collating relevant information disclosed to the public. Then, the behaviour
of selected individuals will be reflected upon on the basis of applicable
codes of conduct and other integrity-grounded considerations. These indi-
viduals include the United Nations (‘UN’) Secretary-General (‘UNSG’),
UN Legal Counsel, MICT Counsel for the Office of the Prosecutor along
with the Prosecutor himself (‘OTP’ or ‘Prosecution’), Defence Counsel for
Ngirabatware, Peter Robinson, at the relevant point in time, and MICT
President and Pre-Review Judge Theodor Meron. By applying the integrity
*
Antonio Angotti is a licensed attorney in Florence, Italy and a Fellow at the Centre for In-
ternational Law Research and Policy (CILRAP). He holds a law degree from the University
of Florence and an LL.M. from the Pennsylvania State University. Basil Saen is an attorney
at the Brussels Bar, where he focuses on white-collar crime, criminal procedure and investi-
gations and a teaching assistant at the Institute for International Law of the University of
Leuven (KU Leuven). He holds a Master of Law from the University of Leuven (KU Leu-
ven). Shan Patel is Research Assistant at the Department of International Law and Dispute
Resolution, Max Planck Institute Luxembourg for Procedural Law and read, inter alia, in-
ternational criminal law and human rights at the London School of Economics and Political
Science.

standard to a specific factual narrative, we aim to identify and concretize

how integrity affects international criminal justice in practice.
The concept of integrity considered in the framework of the Integrity
Project, 1 and therefore in this chapter, draws predominantly from Dag
Hammarskjöld’s description as comprising “respect for law and […] for
truth”. 2 Both elements are important, but protecting and upholding them
simultaneously may prove difficult. Actors of international justice must
display increasingly exemplary behaviour, particularly in light of States’
reinvigorated efforts furthering national sovereignty and their attempts to
curb supranational influence. 3 Hence, in advocating this respect for law and
truth, the international judiciary and supranational organizations are to
safeguard against national pressures prejudicial to integrity. 4 Transparency
should be held in high regard, especially in such situations. When interna-
tional criminal tribunals are involved, States Parties will, in many cases, be
responsible for the election of the international judiciary. Whenever nation-
al politics or policies risk interfering with States’ responsibilities regarding
international justice, it is necessary for individuals within international or-
ganizations to take a stance and sometimes showcase “freedom from cor-
rupting influences”. 5 Throughout this chapter, this balancing exercise will
stand at the forefront of the analysis.
The United Nations International Civil Service Advisory Board re-
ported that integrity must be judged on the basis of the total behaviour of a
person. 6 Indeed, as Bergsmo points out, the word integrity comes from the
Latin integer, meaning whole or complete. 7 In that respect, our reflections
upon integrity are unavoidably a fractional analysis. Such limitations not-
1
Series No. 93 (2018), Torkel Opsahl Academic EPublisher, Brussels, 2018 (http://
www.toaep.org/pbs-pdf/93-bergsmo).
2
Dag Hammarskjöld, “The International Civil Servant in Law and in Fact”, in Wilder Foote
(ed.), Servant of Peace: A Selection of Speeches and Statements of Dag Hammarskjöld, Sec-
retary-General of the United Nations 1953-1961, Harper & Row, New York, 1962, p. 348
(emphasis added) (http://www.legal-tools.org/doc/64bcae/).
3
4
Ibid. See also Morten Bergsmo, “Integrity as Safeguard Against the Vicissitudes of Com-
mon Justice Institutions”, CILRAP Film, The Hague, 1 December 2018 (www.cilrap.org/
cilrap-film/181201-bergsmo/).
5
Ibid., p. 2.
6
See International Civil Service Advisory Board, “Report on Standards of Conduct in the
International Civil Service”, 8 October 1954 (http://www.legal-tools.org/doc/d94c61/).
7

24. Individual Integrity and Independence of Judges: The Akay Saga
withstanding, aside from freedom from corruptibility, the Policy Brief sets
forth a variety of interesting traits included in a broad understanding of in-
tegrity equally valuable to recall, including truthfulness and fidelity. 8 These
traits resonate strongly with both the facts presented below and our reflec-
tions on integrity in relation thereto.
Lastly, the ethics of international civil servants are indeed fundamen-
tal to understand how desirable conduct can be inspired and obtained. Insti-
tutional integrity must be matched by the integrity of the individuals in-
volved, who can act as a buffer against external influences. Given the plu-
rality of actors and motives surrounding international justice, the Akay saga
reveals how examples of individual integrity may provide the bricks for a
wider reflection on its role and the risks of its absence.
24.2. Reflections on Questions of Integrity of the Concerned
Individuals
Before expanding on the integrity of a number of concerned individuals, a
brief overview will be presented of the circumstances surrounding Aydin
Sefa Akay’s criminal conviction in the Republic of Turkey and his subse-
quent non-reappointment as a judge of the Mechanism.
24.2.1. The Akay Saga
On or around 21 September 2016, Akay, who served as a judge on the
Mechanism’s Ngirabatware bench, was arrested in Turkey, his country of
origin. 9 His arrest was linked to “the events of July 2016 directed against
the constitutional order of Turkey”. 10 Elements of the Turkish military at-
tempted a coup d’état against the Government of Turkey on 15 July 2016.
In response, a state of emergency was declared and routinely extended,
leading to human rights concerns. 11 According to Human Rights Watch, the
Government “embarked on a wholesale purge of public officials, police,
8
Ibid.
9
International Residual Mechanism for Criminal Tribunals, Prosecutor v. Augustin Ngira-
batware, Appeals Chamber, Transcript of Hearing, 17 January 2017, MICT-12-29, p. 2
(‘MICT, Ngirabatware’) (http://www.legal-tools.org/doc/d35912/).
10
Ibid.
11
Kareem Shaheen, “Suffocating Climate of Fear in Turkey Despite End of State of Emergen-
cy”, in The Guardian, 19 July 2018. Shaheen notes that the state of emergency ended in July
2018, but that a “suffocating climate of fear” continued to engulf the country.

teachers, judges and prosecutors”. 12 Critics aver that the state of emergency
has been used to detain, intimidate, and prosecute Government opponents
for lengthy periods and without trial. 13 Specifically, with regard to govern-
ment interference with the independence of the judiciary, the Office of the
United Nations High Commissioner for Human Rights documented “in-
creased executive control over, and interference with the judiciary and
prosecution service; the arrest, dismissal and arbitrary transfer of judges
and prosecutors to other courts; and recurring instances of threats against
lawyers”. 14 These internal politics and circumstances surrounding the arrest
and criminal conviction of Akay, though worrisome by rule of law stand-
ards, will not be further discussed in this chapter. Notwithstanding, such
context is important to understand and assess the actions taken vis-à-vis
Akay.
After his arrest, Akay sought release by domestic petition and filed
an application before the European Court of Human Rights. 15 Nevertheless,
he remained in detention, affecting the Mechanism’s ability to function and
ultimately leading to a standstill in the Ngirabatware proceedings, 16 with
corresponding implications to the accused’s right to a fair trial. Several mo-
tions were filed by the parties to the Ngirabatware case, followed by deci-
sions issued by Judge Meron, explicitly dealing with the Akay matter. At
the same time, correspondence was exchanged between the MICT, through
its President, the Defence Counsel for Ngirabatware, other UN officials and
institutions and the Government of Turkey.
On 5 October 2016, President Meron issued a letter to the UN Secu-
rity Council (‘UNSC’), describing the Akay situation, alerting the UNSC of
the matter, and asking to have his letter circulated as an official UNSC
12
Human Rights Watch, “World Report 2017: Turkey”, para. 1 (available on the Human
Rights Watch’s web site).
13
Shaheen, 2018, see above note 11.
14
Office of the UN High Commissioner for Human Rights (‘OHCHR’), “Report on the Impact
of the State of Emergency on Human Rights in Turkey, Including an Update on the South-
East”, March 2018, para. 48 (available on the OHCHR’s web site).
15
MICT, Ngirabatware, Order to the Government of the Republic of Turkey for the Release of
Judge Aydin Sefa Akay, 31 January 2017, para. 13, see above note 9(‘Order for Release’)
(http://www.legal-tools.org/doc/a4975e/) (citing European Court of Human Rights, Akay v.
Turkey, Referral No. 59/17).
16
Letter from the President of the International Residual Mechanism for Criminal Tribunals,
T. Meron, Regarding the Detention of Turkish Judge Aydin Sefa Akay to the UN Security
Council, UN Doc. S/2016/841, 5 October 2016.

document. 17 From that moment on, Meron continued to bring the issue up
in his communications with the UNSC, up to and including his last address
to the UNSC as President of the Mechanism. 18
Meron met with then-UNSG Ban Ki-moon on 8 November 2016.
The MICT President drew the UNSG’s attention to the situation and ex-
pressed his grave concern. He stated that absent a speedy release of Akay,
“a dangerous precedent for the rule of law, for the principle of judicial in-
dependence, and for international justice” would be established. 19
The following day, he brought the issue to the attention of the UN
General Assembly (‘UNGA’). In his address to the UNGA, Meron stressed
the importance of diplomatic immunity granted to MICT judges, which
allows them to “work remotely as much as possible and away from the
seats of the Mechanism”. 20 Akay himself was working from his country of
origin, Turkey, at the moment of his arrest. Meron informed the UNGA that
the UN Office of Legal Affairs (‘UNOLA’) had formally asserted Akay’s
immunity on behalf of the UNSG. 21 Meron expressed his regret that Turkey
did not issue any formal communication on the matter to the Mechanism or
the UN, and explicitly called upon Turkey to comply with its international
obligations under Chapter VII of the UN Charter and immediately release
Akay from detention. 22
Notably, Ngirabatware’s Counsel, Robinson, filed a motion the next
day asking, inter alia, to order Turkey to cease prosecution of Akay so that
the latter could continue his judicial functions on the MICT bench. 23 On 28
November 2016, Meron, as Pre-Review Judge, invited Turkey to file a re-
sponse to the motion. 24 No such response was however issued. 25 During the
17
Ibid.
18
MICT, President Theodor Meron, “Address to the UN Security Council”, 11 December
2018 (available on the MICT’s web site).
19
MICT, “President Meron Meets with UN Secretary-General Ban Ki-moon”, 9 November
2016, para. 4 (available on the MICT’s web site).
20
MICT, President Theodor Meron, “Address to the UN Security Council”, 9 November 2016,
p. 3 (available on the MICT’s web site).
21
Ibid.
22
Ibid.
23
MICT, Ngirabatware, Motion for Order to Government of Turkey or for Temporary Provi-
sional Release, 10 November 2016, see above note 9 (http://www.legal-tools.org/doc/
a2f168/).
24
MICT, Ngirabatware, Invitation to the Government of the Republic of Turkey, 28 Novem-
ber 2016, see above note 9 (http://www.legal-tools.org/doc/069a4c/).
25
MICT, Ngirabatware, Order for Release, para. 7, see above note 15.

hearing of 17 January 2017, the primary purpose of which was to provide

Turkey with the opportunity to be heard on the motion issued by
Ngirabatware on 10 November 2016, ample consideration was accorded to
Akay’s situation. 26 However, no representative of Turkey attended. 27
Moreover, the Government apparently refused to receive the invitation to
the hearing, turning away the diplomatic couriers who sought to deliver
them at its embassies both in Tanzania and in the Netherlands. 28 Robinson
described how he himself even cycled to the Turkish embassy in The
Hague in an attempt to deliver news about the hearing, without success. 29
Hence that, on 31 January 2017, Pre-Review Judge Meron issued an
‘Order to the Government of the Republic of Turkey for the Release of
Judge Aydin Sefa Akay’, noting that such an order was “entirely appropri-
ate and necessary to ensure that the review proceedings can conclude”. 30
Turkey was to cease all legal proceedings against Akay and to release him
from detention before 14 February 2017. 31 By 6 March 2017, in the ab-
sence of action, Turkey was found to have failed to comply with its obliga-
tions under Article 28 of the MICT Statute 32 to cooperate with the Mecha-
nism and comply without undue delay to the order issued on 31 January
2017. 33 As a result, the matter was to be reported to the UNSC. 34 On 9
March 2017, President Meron notified the UNSC of Turkey’s failure to co-
operate. 35 Within 24 hours, Turkey provided an official response through a
letter of its Permanent Representative to the UN, addressed to the President
of the UNSC. 36 The Turkish Government stressed that Akay was arrested
on the charge of being a member of the Fetullahist Terrorist Organization,
26
MICT, Ngirabatware, Transcript of Hearing, p. 2, see above note 9.
27
Ibid., p. 3; MICT, Ngirabatware, Order for Release, para. 8, see above note 15.
28
29
Ibid.
30
MICT, Ngirabatware, Order for Release, para. 16, see above note 15.
31
Ibid., para. 18.
32
Resolution 1966 (2010), UN Doc. S/RES/1966, 22 December 2010, para. 16 (‘MICT Stat-
ute’) (http://www.legal-tools.org/doc/e79460/).
33
MICT, Ngirabatware, Decision on Republic of Turkey’s Non-Compliance with Its Obliga-
tions to Cooperate with the Mechanism, 6 March 2017 (http://www.legal-tools.org/doc/
47e335/).
34
Ibid., p. 2.
35
MICT, “Mechanism Notifies United Nations Security Council of Turkey’s Non-
Compliance”, 16 March 2017 (available on the MICT’s web site).
36
Letter dated 10 March 2017 from the Permanent Representative of Turkey to the United
Nations addressed to the President of the Security Council, UN Doc. S/2017/210, 10 March
2017.

an offence punishable under the Turkish Penal Code. The Permanent Rep-
resentative further claimed that the Mechanism was not entitled to issue the
31 January 2017 order, that it clearly overstepped its mandate, and that the
order was a “flagrant and worrying attempt to interfere with the independ-
ent judicial process” of Turkey. 37 As a result, Turkey consistently consid-
ered the order to be null and void. 38
In June 2017, Akay was convicted by a Turkish criminal court of first
instance in Ankara for being a member of the Fetullahist Terrorist Organi-
zation. He was sentenced to seven years and six months of imprisonment.
Following his provisional release pending appeal, Akay resumed his judi-
cial functions for the Mechanism. President Meron expressed his regret for
Turkey’s actions and called on the Government to “take urgent steps to re-
spect the protected status of Judge Akay and to resolve the situation con-
sistent with international law”. 39
Consequently, in his 22 June 2018 letter to the President of the
UNSC, the UNSG noted that, under Article 9 of the MICT Statute, judges
are to be “persons of high moral character, impartiality and integrity who
possess the qualifications required in their respective countries for ap-
pointment to the highest judicial offices”. 40 The UNSG stated that the
Turkish Government had informed the Secretariat that Akay’s eligibility
was tarnished and that he “does not possess the qualifications for appoint-
ment to the highest judicial office in Turkey under the applicable law”. 41
The UNSG concluded that, in light of the information which the Govern-
ment of Turkey apparently had furnished, Judge Akay “does not currently
meet the qualification requirements for judges of the Mechanism under Ar-
ticle 9, paragraph 1, of the Statute and, consequently, cannot be considered
for reappointment”. 42
That being the case, on 29 June 2018, the UNSG did not reappoint
Judge Akay as a judge of the MICT. 43 In reaction, President Meron again
37
Ibid., p. 2.
38
Ibid.
39
MICT, “Statement of the Mechanism on Conviction of Judge Aydin Sefa Akay by Turkish
Criminal Court of First Instance”, 15 June 2017, para. 3 (available on the MICT’s web site).
40
Letter dated 22 June 2018 from the Secretary-General addressed to the President of the Se-
curity Council, UN Doc. S/2018/626, 26 June 2018, p. 1.
41
Ibid.
42
Ibid., p. 2.
43
MICT, “Statement of the President on the Non-Reappointment of Judge Akay”, 3 July 2018
(available on the MICT’s web site).

expressed his regret and disagreement. 44 Meron furthered that “the decision
not to reappoint Judge Akay is profoundly troubling on multiple levels”. 45
With regard to the fact that the decision not to reappoint Akay was based
on information provided by the Turkish Government, Meron averred that
the acquiescence to the position advanced by the Government
of Turkey represents a de facto acceptance of a State’s actions
undertaken in contravention of the diplomatic immunity as-
serted by the United Nations, a dangerous precedent to set. 46
He concluded by stressing the importance of judicial independence,
which he deems “a cornerstone principle of the rule of law”, and the danger
this precedent holds for the integrity of the Mechanism, as well as for the
overall project of international criminal justice. 47
On 23 July 2018, President Meron assigned Judge Lee G. Muthoga to
replace Judge Akay on the Ngirabatware bench. 48 Several months later, in
December 2018, the Turkish Judge Yusuf Aksar was elected to the judicial
roster of the Mechanism. 49
Most notably, in early 2019, Judge Christoph Flügge resigned from
the MICT citing, among other concerns, political interference by Turkey
and the United States. He claimed Turkey's allegations against Akay to be
“baseless” and stated that Akay's non-reappointment had been enabled by
the connivance of the UN. 50 According to Flügge, other judges of the
Mechanism protested to the course of events, but without success. Finally,
Flügge, much like Meron, underlined the importance of judicial independ-
ence, stating that:
[e]very incident in which judicial independence is breached is
one too many. Now there is this case, and everyone can in-
voke it in the future. Everyone can say: ‘But you let Turkey
get its way.’ This is an original sin. It can’t be fixed. 51
44
Ibid.
45
Ibid., para. 1.
46
Ibid., para. 5.
47
Ibid., para. 6.
48
MICT, Ngirabatware, Order Replacing a Judge in a Case before the Appeals Chamber, 23
July 2018, see above note 9 (http://www.legal-tools.org/doc/96d930/).
49
MICT, “General Assembly Elects Judge Yusuf Aksar of Turkey to Serve as Mechanism
Judge”, 7 January 2019 (available on the MICT’s web site).
50
Daniel Boffey, “UN Court Judge Quits The Hague Citing Political Interference”, in The
Guardian, 28 January 2019. See also Stefan Willeke, “Ich bin zutiefst beunruhigt”, in Die
Zeit, 25 January 2019.
51
Ibid.

In his last address as President of the Mechanism, Meron availed of

the opportunity to bring the Akay issue to the attention of the UNSC once
again. He expressed his profound regret that a different and better resolu-
tion was not found, and indicated how, going forward, it would be im-
portant that “fair and transparent processes be developed to determine
whether any proposed non-reappointment of a Judge accords with the fun-
damental principles of the rule of law”. 52
24.2.2. Questions of Integrity for Selected Individuals
With the factual narrative described above as context, the behaviour of a
number of selected individuals will be reflected upon in terms of integrity.
These individuals are the UNSG, the UN Legal Counsel, the Prosecution,
Defence Counsel for Ngirabatware, Robinson, and MICT President and
Pre-Review Judge Meron. The actions of Judge Akay himself will not be
assessed due to the lack of relevant information disclosed to the public.
24.2.2.1. The United Nations Secretary-General 53
24.2.2.1.1. Normative Framework
The UN Charter principally governs the prerogatives ascribed to and con-
duct expected of the UNSG. 54 The UNSG is the chief administrative officer
of the Secretariat, which is one of the principal organs of the organization
and is, as such, accorded legal status on par with the UNSC, UNGA, the
Economic and Social Council, the International Court of Justice and the
Trusteeship Council. 55 Though it is the Secretariat as a whole that is men-
tioned in Article 7 of the UN Charter, practice dictates the reference to
mean the UNSG specifically. 56 After all, Chapter XV of the Charter only
concretely spells out specific duties for the UNSG and leaves those for the
remainder of the Secretariat staff to the UNSG’s discretion. 57
52
MICT, “Address to the UN Security Council”, p. 2, see supra note 17.
53
Ban Ki-moon and António Guterres have both been confronted with the Akay saga during
their respective terms as UNSG. Whenever temporal references are made in relation to con-
duct, the SG to which this pertains has been specified.
54
Charter of the United Nations, 24 October 1945, ch. XV (‘UN Charter’) (outlining the object
and purpose of the Secretariat and, in particular, its leadership).
55
Ibid., Article7.
56
Kjell Skjelsbæk and Gunnar Fermann, “The UN Secretary-General and the Mediation of
International Disputes”, in Jacob Bercovitch (ed.), Resolving International Conflicts, Lynne
Rienner Publishers, London, 1996, p. 78.
57
UN Charter, Articles 98, 100, 101, see above note 54.

Despite the legal equivalence as a principal organ, the wording of Ar-

ticle 98 of the UN Charter indicates that the UNSG will perform functions
“as entrusted to him”, revealing some level of dependency. More so, the
fact that appointment to the position happens at the behest of the UNSC
and UNGA compounds this point. 58 However, this did not withhold Ham-
marskjöld from claiming “authority to act in his capacity as Secretary-
General, rather than as a representative or spokesperson of the General As-
sembly”. 59
Aside from the UN Charter, the International Civil Service Commis-
sion (‘ICSC’) Standards of Conduct, to which all international civil serv-
ants must abide, including the UNSG, clarify that there is an incumbent
“duty […] to maintain the best possible relations with Governments and
avoid any action that might impair this”. 60 Whereas this seems to imply
that the UNSG is expected to acquiesce, at least to some degree, to the po-
litical decision-making of Member States, the contrary holds true. Article
100(1) of the UN Charter clarifies that neither the UNSG nor its staff are to
solicit or accept directions from “any government or from any other author-
ity external to the Organization”. That said, the very nature of the UNSG
position equally renders some level of political engagement crucial. 61
While that may be so, as the ethical guidelines also straightforwardly posit,
interference by international civil servants with domestic affairs is wholly
unacceptable. 62 Meanwhile, the ICSC Standards of Conduct go on to enu-
58
Ibid., Article 97.
59
Carsten Stahn and Henning Melber, “Human Security and Ethics in the Spirit of Dag Ham-
marskjöld: An Introduction”, in Carsten Stahn and Henning Melber (eds.), Peace Diploma-
cy, Global Justice and International Agency, Cambridge University Press, 2014, pp. 20–21.
60
See International Civil Service Commission (‘ICSC’), Standards of Conduct for the Interna-
tional Civil Service, 2013, para. 29 (‘ICSC Standards of Conduct’), approved by United Na-
tions Common System: Report of the International Civil Service Commission, UN Doc.
A/RES/67/257, 3 June 2013. The 2013 ICSC Standards of Conduct replaced the 2001 revi-
sion of the ethical standards adopted in 1954.
61
Indeed, Haack and Kille point to the duality in the UNSG mandate, encompassing both the
political and administrative dimension. See Kirsten Haack and Kent J Kille, “The UN Secre-
tary-General and Self-Directed Leadership: Development of the Democracy Agenda”, in Jo-
el E Oestreich (ed.), International Organizations as Self-Directed Actors: A Framework for
Analysis, Routledge, Oxford, 2012, pp. 29–59. See also Skjelsbæk and Fermann, 1996,
p. 79, see above note 56; Simon Chesterman (ed.), Secretary or General? The UN Secre-
tary-General in World Politics, Cambridge University Press, 2007.
62
Staff Rules and Regulations of the United Nations, UN Doc. ST/SGB/2017/1, 1 January
2017, Regulation 1.2 (d)-(e) (these references can likewise be found in the 2014 version);
ICSC Standards of Conduct, 2013, para. 29, see above note 60.

merate how public support is crucial for any UN organization – and, indeed,
the UN system in general. Civil servants, in that regard, have an ongoing
“responsibility to promote a better understanding of the [system]”. 63 The
independence codified in the UN Charter, thus, must continuously be bal-
anced with the duty to furnish the most optimal relations with States while
acting to the benefit of the organization.
Although the UN Charter indeed makes a direct mention of integrity
and does so in the context of the Secretariat, the reference pertains to
sought after traits that underpin employment considerations. 64 Notwith-
standing the fact that the concept accrued prominence over time, it is not
mentioned in the preamble neither is it found verbatim elsewhere nor con-
ceptually delineated in the UN Charter. However, Article 101 of the UN
Charter allows inferring that holding the requisite integrity is pertinent to
UN employees which, in turn, implies that all staff must act with integrity
when discharging official functions. In that sense, when read in conjunction
with the UN Staff Regulations and ICSC Standards of Conduct, it becomes
clear that integrity is considered one of the “great traditions of public ad-
ministration” entrenched in all aspects of civil service. 65
24.2.2.1.2. Actions
Intent on steering clear of an in-depth discussion on the immunities of in-
ternational judges, this aspect cannot be ignored in assessing the manner in
which the UNSG, as the representative of the international community,
handled the Akay situation. 66 It must be acknowledged that, in November
2016, the UNOLA did, in fact, call upon the Turkish government to halt
legal proceedings against Judge Akay on behalf of then-UNSG Ban Ki-
moon, drawing attention to the diplomatic immunity granted to members of,
inter alia, the MICT bench. 67 Prior to that, on 25 October 2016, the UNO-
63
64
UN Charter, Article 101(3), see above note 54.
65
ICSC Standards of Conduct, 2013, paras. 2, 5, 22, see above note 60; Staff Rules and Regu-
lations of the United Nations, 2017, Regulation 1.2 (b), see above note 62.
66
For a discussion of both the functional and personal immunity of judges in relation to the
situation of Akay, see Ady Niv, “The Immunity of Judge Akay in Turkey: A Test Case for
International Judges’ Immunity and Independence”, in ASIL Insights, 2018, vol. 22, no. 14.
67
See United Nations, “Briefing by Spokesperson for Secretary-General, Stéphane Dujarric”,
10 November 2016 (available on the UN Audiovisual Library’s web site). For a factual
overview of the Akay situation, see above Section 24.2.1.

LA had likewise pointed to the immunity bestowed upon Akay. 68 Noting

the dangers of disregarding UN officials’ immunities, this reaction is to be
readily expected and falls well within the confines of stewardship con-
ferred upon the UNOLA and UNSG, respectively.
Further, correspondence between Robinson and Stephen Mathias,
Assistant Secretary-General for Legal Affairs, allows us to infer that UNSG
António Guterres met with President Erdoğan on 11 February 2017. 69
Whether the situation concerning Judge Akay had been discussed was, ra-
ther unsurprisingly, neither confirmed nor denied seeing the confidential
nature of diplomatic conversations. Mathias did note, however, that “the
position of the Organization remain[ed] unchanged” from its October 2016
assertion. 70 It remains unknown whether the UNSG undertook any addi-
tional action toward Turkey in relation to the matter. As such, it is vital to
note that the reflections expressed below remain limited to the information
available to the public at large. Recalling the inherent importance of public
support and transparency outlined in the Standards of Conduct, however,
this seems symbolically – if not symptomatically – apt.
The next time the UNSG engaged publically with the situation sur-
rounding Judge Akay was when he, on 22 June 2018, addressed the Presi-
dent of the UNSC to advise non-reappointment. 71 According to the corre-
spondence, “[t]he Government [of Turkey] has provided supporting materi-
al in this regard” which upon review satisfied the UNSG that Akay does
not fulfil the Article 9 MICT Statute requirements for a seat on the bench. 72
What the so-called ‘information furnished’ by the Turkish Government en-
tails, remains unclear.
24.2.2.1.3. Reflections on Integrity
At the heart of institutional behaviour, and embodied in the UN Charter,
one finds deep-rooted ideals resonating with independence and integrity. 73
68
MICT, Ngirabatware, Motion to Initiate Contempt Proceedings, 3 April 2017, annex E, see
above note 9 (http://www.legal-tools.org/doc/a1a511/).
69
70
Ibid., para. 3.
71
Letter dated 22 June 2018 from the Secretary-General addressed to the President of the Se-
curity Council, 2018, see above note 40.
72
Ibid., para. 7.
73
See, for example, Kent J. Kille (ed.), The UN Secretary-General and Moral Authority: Eth-
ics and Religion in International Leadership, Georgetown University Press, Washington,
D.C., 2007.

In this context, a commonality between UNSG officeholders is raised;

namely, how “[t]hey often engaged the charter with an almost religious
reverence as a sacred text and perceived themselves as the embodiment of
the charter and its ethical code”. 74 If this indeed holds true, it can be argued
that seemingly dubious Member State conduct should warrant the most
transparent approach. The mere indication of political manoeuvring on the
part of the Turkish Government would thus invoke the UNSG’s moral au-
thority and necessitate action to prevent dubiety in his office – thereby also
protecting the organization and safeguarding the reverence for the Charter.
Although arguably, that might be the case in terms of the ethical expecta-
tions of civil service, the UNSG is under no legal obligation to do so.
As the UN Staff Regulations and ICSC Standards of Conduct reveal,
civil servants must conduct themselves with the promotion of the UN sys-
tem in mind. 75 This, too, supports the idea that any challenges to independ-
ence and integrity should be dealt with in a perspicuous manner, visible to
the public. Transparency, after all, promotes understanding. More so, pro-
cedural transparency becomes even more crucial when concerns have been
raised by those operating within the system itself, for example, Judges
Theodor Meron and Christoph Flügge, rather than by external spectators.
Furthermore, the leading position of the UNSG allows “for [the] raising [of]
ethical concerns in international affairs”. 76 Even the semblance of interfer-
ence with the international judiciary or contempt for diplomatic immunities
should qualify as such an ethical concern, as it is flagrantly dismissive of
the ideals of independence and integrity enshrined in the UN Charter. The
UNSG, as the spokesperson for the global interest, occupies a prime posi-
tion to remove any and all such manifestations of ethical opaqueness. 77 Af-
ter all, perception matters. 78
74
Kent J. Kille, “The Secular Pope: Insights on the UN Secretary-General and Moral Authori-
ty”, in Kille (ed.), 2007, p. 352, see ibid.
75
See above notes 63 and 65.
76
Kille, 2007, pp. 352–353, see above note 74.
77
Simon Chesterman, “The Secretary-General We Deserve?”, in Global Governance, 2015,
vol. 21, no. 4, pp. 505–506. See also Jodok Troy, “Two “Popes” to Speak for the World:
The Pope and the United Nations Secretary General in World Politics”, in The Review of
Faith & International Affairs, 2017, vol. 15, no. 4, p. 71.
78
See, for example, Dina F. Haynes, “Ethics of International Civil Service: A Reflection on
How the Care of United Nations Staff Impacts the Ability to Fulfill Their Role in Harmoniz-
ing the World”, in Hamline Journal of Public Law & Policy, 2008, vol. 30, no. 1, pp. 208–
209. See also David M. Malone, “Eyes on the Prize: The Quest for Nonpermanent Seats on
the UN Security Council”, in Global Governance, 2000, vol. 6, no. 1, pp. 3–23; Elia Arm-

Arguably, to the benefit of the ‘best possible’ relationship with the

Turkish Government, it seems that the UNSG should refrain from being
readily critical of affairs that clearly fall within the national sphere of com-
petence, such as domestic security and prosecutorial policy. 79 However,
such restraint should not be equated to complete abstinence whenever UN
core values are at stake. The UNSG “is supposed to expound these ideas in
his public statements and be an embodiment of them in his diplomatic ac-
tions”. 80 This would certainly resonate with Hammarskjöld. Albeit so, with
limited tools at his disposal to himself rectify Member States’ actions – let
alone those deemed ‘solely’ morally egregious – the practicability of addi-
tional UNSG intervention could be questioned. 81 Moreover, the measure by
which to assess whether the assertion of Akay’s immunity to Turkey was
indeed an appropriate manner in which to discharge moral duties is entirely
arbitrary. Notwithstanding the potential consequences for the rule of law or
the independence of the international judiciary, there was no legal obliga-
tion, whether Charter-based or otherwise, incumbent on the UNSG to take
any additional action out of his own initiative. He followed the letter of the
law.
1.1.1.1. The United Nations Legal Counsel
As head of the Office of Legal Affairs, the Under-Secretary-General and
UN Legal Counsel (‘UN Legal Counsel’), Miguel de Serpa Soares, is a se-
cond actor whose integrity of conduct is of interest. Before evaluating the
actions of the UNOLA and, in particular, the UN Legal Counsel individual-
ly, one must recall the organizational hierarchy at play. The UNSG bulletin
on the structure of the Secretariat shows how the 1UNOLA is one of its
strong, “Integrity, Transparency and Accountability in Public Administration: Recent

Trends, Regional and International Developments and Emerging Issues”, United Nations,
New York, 2005, pp. 1–10.
79
Simultaneously, with the outcry relating to the Akay situation originating predominantly in
academia and legal practice, insofar is public knowledge, there is no second government di-
rectly involved with whom the UNSG is to equally furnish this so-called best possible rap-
port.
80
Skjelsbæk and Fermann, 1996, p. 84, see above note 56. See also Hammarskjöld, 1962, see
above note 2. In his address at Oxford University, Hammarskjöld enunciated how one ought
to be “politically celibate” but not a “political virgin”, further strengthening the supposition
that civil service is a continuous balancing act.
81
Ian Johnstone, “The Role of the UN Secretary-General: The Power of Persuasion Based on
Law”, in Global Governance, 2003, vol. 9, no. 4, pp. 441–442.

organizational units, “the head of which is accountable to the Secretary-

General”. 82 Next to providing a clear chain of accountability, this denotes
that the Standards of Conduct and Staff Regulations guiding international
civil servants are likewise the applicable normative confines in this frame-
work. 83
A second UNSG bulletin clarifies the mandate of the UNOLA fur-
ther. 84 From a managerial perspective, it indicates that the UN Legal Coun-
sel is “responsible for ensuring efficiency, transparency and accountability”
of the work conducted under UNOLA purview. 85 More concretely, this in-
cludes operational duties in support of the international criminal tribunals
and the global criminal justice project as a whole. 86 When examining the
UNOLA’s aims more closely, another relevant point is that the Office of the
Legal Counsel, one of its departments, is tasked with, inter alia,
“[p]reparing legal opinions, studies and advice on […] the Convention on
the Privileges and Immunities of the United Nations”. 87 In all, noting the
points of contention at the heart of the Akay situation, the UN Legal Coun-
sel and UNOLA indeed seem the appropriate source of advice within the
Secretariat.
24.2.2.1.5. Actions
On 6 July 2017, while addressing the International Law Commission
(‘ILC’), the UN Legal Counsel referred to the challenges the UN faced re-
lated to privileges and immunities. 88 In doing so, he made direct mention of
the situation regarding Judge Akay. 89 As the meeting records show, de
Serpa Soares gave the ILC a general overview of the facts related to the
Akay situation. From his synopsis, one can extrapolate that, as has been
noted earlier in this chapter, the UNOLA had reminded Turkey of the dip-
82
UN Secretary-General, Organization of the Secretariat of the United Nations, UN Doc.
ST/SGB/2015/3, 22 July 2015, sec. 3. See also UN Secretary-General, Organization of the
Office of Legal Affairs, UN Doc. ST/SGB/2008/13, 1 August 2008, sec. 3.1.
83
See above Section 24.2.2.1.1. On the accountability chain, see also Organization of the Of-
fice of Legal Affairs, 2008, sec. 3, 4, see above note 82.
84
Ibid.
85
Ibid., sec. 3.2.
86
Ibid., sec. 3.5.
87
See, for example, the core functions outlined on its website: UN Office of Legal Affairs,
“Office of the Legal Counsel” (available on the UNOLA’s web site).
88
International Law Commission, Provisional Summary Record of the 3371st Meeting, UN
Doc. A/CN.4/SR.3371, 6 July 2017, pp. 4–5.
89
Ibid.

lomatic immunity conferred on members of the MICT in November 2016

and pointed to its keystone importance for international civil service.
Moreover, it is apparent that the UNOLA, in its assertion, availed itself of
the opportunity to highlight the explicit decision of the UNSC to accord
MICT judges those immunities and, in addition, recalled that international
civil servants serve the organization indiscriminately of nationality. 90 Mr.
de Serpa Soares went on to emphasize how UNOLA “was considering how
to react to the conviction [in first instance] given its inconsistency with the
judge’s diplomatic immunity”. 91 Since then, according to publicly available
information, the Akay situation was not again mentioned to the ILC.
It is clear that shortly after Judge Akay’s arrest, at the direction of
then-UNSG Ban Ki-moon, the UNOLA asserted immunity. 92 Correspond-
ence between Robinson and the UNOLA demonstrates how the former had
requested the UN Legal Counsel to urge UNSG Guterres to reach out to
President Erdoğan. In response, Robinson was informed that “[t]he Secre-
tariat has been monitoring this question since last year and will continue to
do so”. 93 When asked for evidence related to the meeting of 11 February
2017 between UNSG Guterres and President Erdoğan, the UNOLA did not
deny that the meeting took place, nor could it seeing the widespread media
attention it had received, but fell back on the confidentiality of diplomatic
conversations to avoid disclosing its content. 94
Whether or not the UN Legal Counsel acted with the requisite independ-
ence and integrity in discharging his duties is difficult to ascertain. With the
vast majority of the exchanges between the UNSG and UNOLA, as well as
90
Ibid., p. 5. Remarkably, when the MICT Statute was approved by the Security Council, Tur-
key held one of its rotating seats and voted in favour of its adoption, see 6463rd Meeting
Records, UN Doc. S/PV.6463, 22 December 2010, p. 3.
91
Provisional Summary Record of the 3371st Meeting, 2017, see above note 88.
92
MICT, Ngirabatware, Motion to Initiate Contempt Proceedings, annexes C, E, see above
note 68. See also above note 67.
93
MICT, Ngirabatware, Motion to Initiate Contempt Proceedings, annex C, see above note
68. For our reflections on the integrity of Defence Counsel, see below Section 1.1.1.3.
94
Ibid., annex E. Confirming the meeting between the UNSG and President Erdoğan, see also
“In Turkey, UN Chief Guterres Discusses Syria, Iraq, Cyprus with President”, in UN News,
11 February 2017 (available on the UN News’ web site); Shebab Khan, “UN Secretary-
General Says Fight Against Extremists in Syria Needs Political Solution”, in The Independ-
ent, 11 February 2017; “Erdoğan, BM Genel Sekreteri Guterres ile bir araya geldi”, in Sput-
nikNews Türkiye, 11 February 2017.

those between UNOLA and Member States, inaccessible due to their confi-
dential nature, any opinion will necessarily carry qualified weight. The
UNSC meeting records nevertheless provide some valuable insight insofar
that the efforts of the UN Legal Counsel and his office have been lauded by
some Member State Representatives. For example, Senegal “commend[ed]
the work being carried out by the Office of Legal Affairs of the Secretariat”
surrounding the Judge Akay and “welcome[d] the efforts […] to seek a
happy conclusion to this matter”. 95 Although final conclusions cannot be
drawn from this praise, it seems that the behaviour of the relevant UNOLA
officials fell in line with expectations. Such conduct is to be expected, tak-
ing into account the fact that independence and integrity are core values at
the organization, essential for civil servants such as the UN Legal Counsel,
as a member of the Secretariat. On top of that, the UNSG bulletin specifi-
cally notes that the Secretariat must “promote the principles of the Charter”
in its functioning, adding validity to such a supposition. 96
The duties of the UN Legal Counsel include, in addition, ensuring
the transparency of his office. 97 Despite the absence of any indication in the
UNSG bulletin as to whom this transparency of conduct is owed, read to-
gether with the Standards of Conduct and Staff Regulations, one can as-
sume that the Office services the general public and should allow the latter
to scrutinize UNOLA conduct. Unsurprisingly, the transparency-related
duties link to the requirement obliging the international civil servant to
promote the public’s understanding of the UN system. 98 Notwithstanding
any responsibilities that indeed might be owed to the public at large by vir-
tue of his status as a civil servant, as counsel to the UNSG and the UN bod-
ies, de Serpa Soares has a foremost – and overriding – duty to his client.
This could explain the relative lack of information furnished by the UN
Legal Counsel, as well as the UNOLA, and would categorize the conduct
portrayed as evidencing sufficient levels of integrity, within the confines of
the available professional latitude. In addition, the fact that President Mer-
on, a central voice in the Akay saga, consistently expressed his gratitude to
“Mr. Miguel de Serpa Soares […] for […] ongoing and critically important
95
7829th Meeting Records, UN Doc. S/PV.7829, 8 December 2016, p. 13; 7960th Meeting
Records, UN Doc. S/PV.7960, 7 June 2017, p. 15.
96
Organization of the Secretariat of the United Nations, 2015, sec. 2, see above note 82.
97
Organization of the Office of Legal Affairs, 2008, sec. 3.2, see above note 82.
98

assistance”, one can assume that requisite levels of integrity were dis-
played. 99
1.1.1.2. The Office of the Prosecutor of the International Residual
Mechanism for Criminal Tribunals 100
The MICT Prosecution is bound by the Standards of Professional Conduct
of Prosecution Counsel (‘Standards’). 101 Adopted by the then-Prosecutor,
Hassan Bubacar Jallow, these Standards are guided by a number of consid-
erations listed in the first article. One of these considerations affirms that
“Prosecutors, who in the MICT represent the international community, play
a crucial role in the administration of justice”. 102 The Prosecution is ex-
pected “to assist the Tribunal to arrive at the truth and to do justice for the
international community, victims and accused”, 103 and to respect the rights
of the accused, including the right to a fair trial by an impartial and inde-
pendent judiciary. 104 The MICT Standards likewise outline a cooperative
approach to the fulfilment of a part of the duties of the OTP: the Prosecu-
tion must see that the legitimate interests of the international community
are duly reflected in the administration of justice, and must do so in coop-
eration with the Mechanism.
In addition, the Guidelines on the Roles of Prosecutors (‘Guidelines’),
adopted by the Eighth UN Congress on the Prevention of Crime and the
Treatment of Offenders, 105 hold particular value due to the Mechanism hav-
ing received its mandate from the UNSC. Article 12 of the Guidelines is,
99
7829th Meeting Records, 2016, p. 5, see above note 95; 7960th Meeting Records, 2017,
p. 6, see above note 958278th Meeting Records, UN Doc. S/PV.8278, 6 June 2018, p. 2. It
should be acknowledged that Meron never explicitly linked his expression of gratitude to as-
sistance in the Akay matter.
100
At the time of writing, Mr. Serge Brammertz is the MICT Chief Prosecutor.
101
MICT, Prosecutor’s Regulation No. 1 (2013) on Standards of Professional Conduct of Pros-
ecution Counsel, MICT/12, 29 November 2013 (‘MICT Standards for Prosecution’) (http://
www.legal-tools.org/doc/d71ab0/).
102
Ibid., Article 1.
103
Ibid., Article 2(h).
104
Ibid., Article 2(a).
105
Guidelines on the Roles of Prosecutors, Eight UN Congress on the Prevention of Crime and
the Treatment of Offenders, UN Doc. A/CONF.144/28/Rev.1, 27 August 1990, p. 188 (‘UN
Guidelines on the Roles of Prosecutors’) (http://www.legal-tools.org/doc/658aba/), wel-
comed by Resolution 45/166 (18 December 1990), UN Doc. A/RES/45/166, 18 December
1990.

however, careful in its reference to the duty to cooperate with the court in
protecting the accused person’s right to a fair trial. Indeed, it states that
“Prosecutors shall […] perform their duties fairly […] contributing to en-
suring due process”. 106
The Standards of Professional Responsibility and Statement of Es-
sential Duties and Rights of Prosecutors of the International Association of
Prosecutors 107 (‘IAP Standards’) should be considered a document with
significant persuasive power: more so, as it is mentioned in Article 1 of the
MICT Standards. 108 Article 4.3 of the IAP Standards explicitly demands
that “Prosecutors […] safeguard the rights of the accused in co-operation
with the court”, 109 which should be read alongside the duty enshrined in
Article 1 of the IAP Standards to “always protect an accused person’s right
to a fair trial”. 110
The obligation to cooperate with the court to ensure the accused’s
right to a fair trial by an independent judiciary is crucial for the case at
hand. This specific duty defines the role of the MICT Prosecution beyond
the successful prosecution of cases. When fair trial rights are in peril, the
OTP must work with the MICT adjudicatory arm to avert such threats. In
the Ngirabatware case, complying with the aforementioned obligation
would have meant acting in defence of Judge Akay’s independence in order
to preserve Ngirabatware’s right to a fair trial.
24.2.2.1.8. Actions
There were two potential avenues for the Prosecution through which to
protect the independence of the Ngirabatware bench. First, pursuant to
UNSC Resolution 1966 (2010), 111 the Prosecutor of the Mechanism, along
with the President, submit biannual progress reports to the UNSC. In the
reports of November 2016 112 and May 2017, 113 as described below, the
106
Ibid., Article 12, p. 192.
107
International Association of Prosecutors, Standards of Professional Responsibility and
Statement of Essential Duties and Rights of Prosecutors, 23 April 1999 (‘IAP Standards’)
(available on the IAP’s web site).
108
MICT Standards for Prosecution, Article 1, see above note 101.
109
IAP Standards, Article 4.3, see above note 107.
110
Ibid., Article 1.
111
MICT Statute, see above note 32.
112
Assessment and Progress Report of the President of the International Residual Mechanism
for Criminal Tribunals, Judge Theodor Meron, for the Period from 16 May to 15 November
2016, UN Doc. S/2016/975, 17 November 2016, Annex I, paras. 13, 38, 90.

President brought to the attention of the UNSC the issue of Judge Akay’s
independence. The Prosecutor, on the contrary, did not mention Akay or the
Ngirabatware proceedings at all.
A second avenue to protect the independence of the MICT judge be-
came available during the proceedings of the Ngirabatware case itself
when significant discussion on judicial independence took place. In the
hearing of 17 January 2017, 114 the Prosecution 115 emphasized how “a way
forward has to be found so that the fair trial issues that have arisen in this
case can be resolved without any further delay”, holding that “an order to
Turkey is not a guaranteed solution” while expressing “concern about the
prospect of [Turkey’s] timely compliance with any order issued”. 116 The
Prosecution suggested to replace Judge Akay on the bench and, to that end,
provided legal grounds for the different possibilities granted by the Statute
as well as the MICT Rules of Procedure and Evidence. 117 While it is fair to
note that the ‘remedies’ suggested during the course of the hearing would
have, for the most part, preserved Akay’s immunity, the Prosecution seem-
ingly did not weigh the far-reaching consequences in terms of judicial in-
dependence. The OTP has been shown to pursue one main interest: moving
the case forward, arguably willing to waive judicial independence in order
to minimize delays. This aim has been clearly articulated during the hear-
ing when the Prosecution affirmed that “ensuring an immediately available
review bench that can move forwards with deliberations in this case is the
priority”. 118
Other case documents contribute to outline the overall attitude of the
OTP. In its Response to Ngirabatware’s Motion for Order to Government
of Turkey or for Temporary Provisional Release, the Prosecution contended
that “a period of two months does not, in the particular circumstances of
this case, amount to undue delay given the complexity of the matter before
the Appeals Chamber” and requested the dismissal of both the motion and
113
for Criminal Tribunals, Judge Theodor Meron, for the Period from 6 November 2016 to 15
May 2017, UN Doc. S/2017/434, 17 May 2017, Annex I, paras. 12–14, 38, 89.
114
MICT, Ngirabatware, Transcript of Hearing, see above note 9.
115
Ms. Michelle Jarvis appeared for the Prosecution, with Mr. Mathias Marcussen as Co-
Counsel and Mr. Iain Reid as Case Manager.
116
117
Ibid.
118
Ibid.

the request for an oral hearing. 119 The Prosecution did not mention the de-
tention of Judge Akay. Regardless, the implications of the matter were not
lost on the OTP. During the proceedings, the Prosecution acknowledged in
several instances how, ultimately, fair trial rights were severely impact-
ed. 120
The normative framework for the OTP outlines an obligation to protect the
accused person’s right to a fair trial in cooperation with the court in order
to properly contribute to the administration of justice. The Ngirabatware
proceedings show how the Prosecution prioritized the swift ending of the
case while disregarding, to some extent, Ngirabatware’s right to be judged
by an independent judiciary. The OTP also refrained from condemning or
pressuring the Government of Turkey, both in the proceedings itself and in
its reporting to the UNSC, even though the MICT Prosecutor is bound to
represent the international community. 121 As the international community
holds a legitimate interest in the independence of international judges and
in the preservation of diplomatic immunity, it can be argued that the Prose-
cution did not properly fulfil its mandate in this regard. The actions of the
OTP narrowly focused on furthering the case, perhaps in order to remain
non-aligned on the matter of Judge Akay’s conviction and imprisonment.
However, we conclude that even if the observed actions may not be directly
construed as a violation of the relevant norms, the MICT Prosecutor was
certainly not neutral in terms of integrity. Acting with integrity would have
demanded to fully embrace the duty to protect the right of the accused to an
impartial judge, contributing to the efforts of the Mechanism, and to safe-
guard judicial independence in the name and for the sake of the interna-
tional community.
119
MICT, Ngirabatware, Prosecution Response to Motion for Order to Government of Turkey
or for Temporary Provisional Release, 18 November 2016, (http://www.legal-tools.org/doc/
762b6c/).
120
See MICT, Ngirabatware, Transcript of Hearing, p. 14, see above note 9.
121
MICT Standards for Prosecution, Article 1, see above note 101.

1.1.1.3. Defence Counsel 122

Article 14 of the Code of Professional Conduct for Defence Counsel Ap-
pearing Before the Mechanism demands loyalty towards a client. 123 In the
same article, however, counsel is imposed a “duty to the Mechanism to act
with independence in the interests of justice”. 124 Those interests must be
put before the counsel’s own interests, and before the interests of any other
person, organization, or State. Read together with Article 20, which de-
mands that counsel “at all times have due regard to the fair conduct of the
proceedings”, 125 the obligation to pursue the interests of justice is hierar-
chically at the highest level, particularly when due process rights are at
stake.
24.2.2.1.11. Actions
As becomes apparent from the hearing of 17 January 2017, Robinson gave
precedence to the defence of judicial independence and its significance for
the juridical process over the provisional release of his client. In the tran-
script of the hearing, between 20 to 25 lines are dedicated to the release of
Ngirabatware, whereas approximately 200 lines are dedicated to the impli-
cations of Judge Akay’s detention. 126 Robinson reacted to the suggestion of
the OTP to replace Judge Akay on the bench contending that the detention
of the Judge was “a broader issue than what the Prosecution is talking
about when it comes to judicial independence”. 127 Robinson admitted that,
from the perspective of Ngirabatware, replacing Akay would have been the
easiest solution in order to move forward. However, Robinson explicitly
stated that he was not willing to allow the replacement “at the expense of a
lack of integrity and independence of the system itself”. 128 Throughout the
hearing, Robinson put the protection of judicial independence at the centre
of his arguments.
122
Mr. Ngirabatware was, at the time of the events we refer to, assisted by Mr. Peter Robinson.
123
MICT, Code of Professional Conduct for Defence Counsel Appearing Before the Mecha-
nism, 14 November 2012, MICT/6, Article 14 (http://www.legal-tools.org/doc/eeb133/).
124
Ibid.
125
Ibid., Article 20.
126
127
Ibid., pp. 28–29.
128
Ibid., p. 29.

The motions filed by Robinson on behalf of Ngirabatware eventually

led to the hearing, which was primarily convened to provide Turkey with
the opportunity to be heard. 129 Counsel took individual initiatives to invite
the Government of Turkey to appear at the hearing, going so far as, on the
morning of the hearing, attempting to contact the Turkish authorities in
person. 130 Furthermore, as the attachments to the Motion to Initiate Con-
tempt Proceedings show, 131 Robinson continued to solicit responses and
information relevant to the matter of Judge Akay with letters directed to the
Turkish government, the UN Legal Counsel and the UN Assistant Secre-
tary-General of Legal Affairs. 132
The Defence Counsel is not an organ of the Mechanism. Notwithstanding,
he or she has a duty to protect the interests of justice. In the issue discussed
here, the interests of justice had been jeopardized by undue interference
with the independence of the Ngirabatware bench. Robinson had an obliga-
tion to put the interests of justice before those of any other person, includ-
ing his client. Accordingly, he gave precedence to the defence of Akay’s
independence. Nevertheless, Robinson managed to uphold his duty of loy-
alty to Ngirabatware appropriately, insofar that it did not prejudice judicial
independence, by motioning for his client’s provisional release.
As Defence Counsel appearing before the Mechanism, Robinson dis-
charged his obligations, as defined in the aforementioned provisions, duti-
fully, demonstrating a firm understanding and adherence to the letter and
the spirit of the applicable code of conduct.
1.1.1.4. President and Judge of the International Residual Mechanism
for Criminal Tribunals
Judge Meron has been the President of the Mechanism from 1 March 2012
to 18 January 2019. During his lengthy judicial career, questions concern-
ing his integrity have been raised, which should be mentioned due to their
relevance to the topic at hand. In 2013, former ICTY Judge Frederik Har-
hoff expressed concerns – in a letter leaked to a Danish tabloid newspa-
per – over the pressure President Meron was perceived to have exercised
129
Ibid., p. 2.
130
Ibid., p. 6.
131
MICT, Ngirabatware, Motion to Initiate Contempt Proceedings, para. 5, see above note 68.
132
Ibid., pp. 12–13, 15-16, 18, 20-21, 25-26. See also Section 1.1.1.1.

on other ICTY judges to promote a legal opinion which Harhoff deemed

desirable for certain States. 133 Subsequent United States diplomatic cables
leaked by WikiLeaks exacerbated this concern. 134 More recently, contro-
versy has arisen over certain early release rulings adopted by Judge Meron;
particularly in the case of Rwandan genocide advocate Ferdinand Nahima-
na. 135 In his last presidential speech at the UNSC, Judge Meron himself
acknowledged with regret the “pain or concern” that some of his early re-
lease decisions might have caused to victims and their communities. 136 On
the issue of the independence of Judge Akay, however, Judge Meron used
every possible avenue to defend judicial independence, which he has con-
sistently deemed critical for the rule of law.
The hierarchy of the principle of judicial independence is made clear by the
Code of Professional Conduct for the Judges of the Mechanism
(‘Code’). 137 Article 10(2) provides that “nothing in this Code is intended in
any way to limit or restrict the judicial independence of the judges”, 138
which constitutes, therefore, a fundamental principle. Accordingly, the UN
Basic Principles on the Independence of the Judiciary 139 (‘Principles’) un-
conditionally prohibit “inappropriate or unwarranted interference with the
judicial process”, 140 underlining that respecting judicial independence “en-
titles and requires the judiciary to ensure that judicial proceedings are con-
133
Frederik Harhoff, “Mystery Lane: A Note on Independence and Impartiality in International
Criminal Trials”, FICHL Policy Brief Series No. 47 (2016), Torkel Opsahl Academic EPub-
lisher, Brussels, 2016 (http://www.toaep.org/pbs-pdf/47-harhoff/).
134
See Gunnar M. Ekeløve-Slydal, “ICTY Shifts Have Made Its Credibility Quake”, FICHL
Policy Brief Series No. 49 (2016), Torkel Opsahl Academic EPublisher, Brussels, 2016
(http://www.toaep.org/pbs-pdf/49-slydal); Julija Bogoeva, “International Judges and Gov-
ernment Interests: The Case of President Meron”, FICHL Policy Brief Series No. 48 (2016),
Torkel Opsahl Academic EPublisher, Brussels, 2016 (http://www.toaep.org/pbs-pdf/48-
bogoeva).
135
Gregory S. Gordon, “Measuring Integrity in Post-Conviction Proceedings” CILRAP Film,
The Hague, 2 December 2018 (https://www.cilrap.org/cilrap-film/181202-gordon/).
136
MICT, “Address to the UN Security Council”, p. 3, see above note 18.
137
MICT, Code of Professional Conduct for the Judges of the Mechanism, 9 April 2018,
MICT/14/Rev. 1 (http://www.legal-tools.org/doc/23cc92/).
138
139
Basic Principles on the Independence of the Judiciary, Seventh UN Congress on the Preven-
tion of Crime and the Treatment of Offenders, UN Doc. A/CONF.121/22/Rev.1, 26 August
1985.
140
Ibid., Article 4.

ducted fairly and that the rights of the parties are respected”. 141 The use of
the term ‘ensure’ arguably construes an active duty to remove impediments
to the fair conduct of judicial proceedings. The MICT Statute, in addition,
affirms the aforementioned principle in its Article 18. 142
Considering how judicial independence is paramount for the respect
of the accused’s right to a fair trial, judges have the duty to ensure its re-
spect at all times. It could be argued that no value should surpass the pro-
tection of judicial independence, as the fair trial rights of the accused lie at
the very core of the rule of law. The explicit mention of the obligation to
ensure an expeditious trial should not be construed as being hierarchically
superior to the rights of the accused, as the Statute equally mandates “full
respect” for the latter too.
In the case at hand, complying with Article 18 of the MICT Statute in
a manner consistent with the Principles would have meant according priori-
ty to the right of the accused to be judged by an independent judiciary. The
provision of Article 10(2) of the Code should be construed as according
priority to the protection of judicial independence over any other obligation
the Code confers upon MICT judges.
24.2.2.1.14. Actions
The actions of Judge Meron in defence of Judge Akay’s independence have
shown consistency with his views on judicial independence and its uncon-
ditionality. In a 2005 article, 143 Meron made two statements that are rele-
vant to the topic at hand. First, he affirmed that a President of an interna-
tional criminal tribunal has a duty to “protect the Tribunal as a whole from
inappropriate encroachment”, even if said encroachment originates from
the Security Council itself. 144 Second, he wrote that “the President’s role as
spokesperson for the Tribunal involves him in diplomatic and political
141
Ibid., Article 6.
142
MICT Statute, p. 13, see above note 32. Article 18 reads: “[t]he Single Judge or Trial
Chambers conducting a trial shall ensure that the trial is fair and expeditious and that pro-
ceedings are conducted in accordance with the Rules of Procedure and Evidence, with full
respect for the rights of the accused and due regard for the protection of victims and wit-
nesses”.
143
Theodor Meron, “Judicial Independence and Impartiality in International Criminal Tribu-
nals”, in The American Journal of International Law, 2005, vol. 99, no. 2, pp. 359–369.
144
Ibid., p. 365.

functions”. 145 Judicial proceedings are not, therefore, the only avenue that a
President should use in order to fulfil his duties towards the Tribunal.
Judge Meron, consistent with the views he expressed in the past, be-
gan his defence of Judge Akay with a letter to the President of the UNSC,
exercising his political functions as the MICT President. 146 The letter, dated
5 October 2016, is the first of a series of initiatives taken by Judge Meron
to draw attention to the ongoing detention of Judge Akay, and its far-
reaching consequences on judicial independence, the rule of law and the
effective functioning of the Mechanism. Indeed, Meron conveyed to the
UNSC that he did not
consider it possible, under the circumstances, to reconcile full
respect for the fundamental principle of judicial independence,
on the one hand, with, on the other hand, the removal of Judge
Akay from the bench to which he has been assigned. 147
In his official capacity as President of the Mechanism, Judge Meron
filed two progress reports to the UNSC, on 17 November 2016 and 17 May
2017, in which he raised the issue of Akay’s detention, noting the broader
implications on the ability of the Mechanism to fulfil its mandate. 148 The
President’s annual report of August 2017 likewise mentioned the assertion
of diplomatic independence of Judge Akay, and the Government of Tur-
key’s non-compliance with the Mechanism’s order to cease all legal pro-
ceedings against Akay and to release him from detention. 149 In his personal
capacity, Meron has stressed the impact of Akay’s detention on the princi-
ple of the rule of law, affirming that “all of us who care about justice and
145
Ibid.
146
Letter from the President of the International Residual Mechanism for Criminal Tribunals,
T. Meron, Regarding the Detention of Turkish Judge Aydin Sefa Akay to the UN Security
Council, 2016, see above note 16.
147
MICT, “Address to the UN Security Council”, 8 December 2016 (available on the MICT’s
web site).
148
for Criminal Tribunals, Judge Theodor Meron, for the Period from 16 May to 15 November
2016, 2016, see above note 112; Assessment and Progress Report of the President of the In-
ternational Residual Mechanism for Criminal Tribunals, Judge Theodor Meron, for the Peri-
od from 6 November 2016 to 15 May 2017, 2017, see above note 113.
149
UN General Assembly, UN Security Council, Fifth Annual Report of the International Re-
sidual Mechanism for Criminal Tribunals, UN Doc. A/72/621, UN Doc. S/2017/661, 1 Au-
gust 2017, para. 26.

are committed to the rule of law must do our utmost to defend this funda-
mental principle [judicial independence]”. 150
During the course of the 17 January 2017 Ngirabatware hearing, as
already mentioned above, the solutions suggested by the Prosecution cen-
tred around replacing Judge Akay on the bench while preserving his as-
signment as a judge of the Mechanism in order to maintain his diplomatic
immunity. Judge Meron, however, intervened to keep the focus on the im-
plications on due process and judicial independence. He pointed out that a
judge of the Mechanism should always be consulted before assigning him
to a panel, and that the consent of a judge must be sought when the Presi-
dent makes such administrative deliberations. Ultimately, Judge Meron
conveyed that the replacement of Judge Akay would have weighed heavily
on judicial independence, and recalled that he had deemed such replace-
ment inappropriate in his communications to the UNSC and the UNGA. 151
Following the hearing, Meron ordered the Government of Turkey to
release Judge Akay. 152 The Order was adopted after the President’s invita-
tions to Turkey to spontaneously release Akay were ignored. At the same
time, Judge Meron denied the Motion to initiate contempt proceedings on
the grounds that it fell outside of the mandate and the powers of the Mech-
anism, which had already taken appropriate steps reporting the issue to the
UNSC. 153
It has already been mentioned that, notwithstanding the efforts of
Judge Meron, Judge Akay was not reappointed to the Mechanism. In his
final appearance before the UNSC as the MICT President, Meron ex-
pressed “profound regret that a different and better resolution for the situa-
tion of my former colleague, Judge Aydin Sefa Akay, was not found”. 154 In
his last speech as President of the Mechanism, he furthermore argued that
at a time when the world is facing deeply troubling trends re-
lated to the undermining of independent judiciaries and the
weakening of the rule of law, we at the United Nations simply
cannot afford to be anything less than exemplary when it
150
Theodor Meron, “The Future of International Criminal Justice”, Remarks at the Embassy of
the Republic of Poland in The Hague on the Occasion of the Awarding of the Officer’s
Cross of the Order of Merit, 16 May 2017, p. 4 (available on the MICT’s web site).
151
152
MICT, Ngirabatware, Order for Release, see above note 15.
153
MICT, Ngirabatware, Decision on a Motion to Initiate Contempt Proceedings, 26 April
2017, see above note 9 (http://www.legal-tools.org/doc/838408/).
154
MICT, “Statement, Address to the UN Security Council”, p. 3, see above note 18.

comes to our own handling of interference with judicial inde-

pendence and actions undertaken in contravention of UN im-
munities. 155

The two roles that President and Judge Meron held throughout the Akay
saga have led to concurring obligations. As President of the Mechanism, he
had a duty to protect the independence of the MICT judges in order to en-
sure the proper functioning of the institution. As Meron himself expressed,
his role as President demanded diplomatic and political engagement; 156 an
obligation he discharged through his reports and addresses to, and commu-
nications with, the relevant UN organs.
As a judge in the Ngirabatware case, Meron’s duty was to ensure the
fairness of the trial and the “full respect for the rights of the accused”, as
demanded by Article 18 of the MICT Statute. 157 The obligation to ensure
the expeditiousness of the proceedings could not be entirely performed
without affecting the fairness of the trial. Judge Meron’s refusal of com-
promises that would have impacted on the right of Ngirabatware to an in-
dependent judiciary, such as Akay’s replacement, was consistent with the
Statute and the UN Basic Principles on the Judiciary.
Accordingly, Meron did everything in his power “to ensure that judi-
cial proceedings are conducted fairly” 158 and to shield the judicial process
from “inappropriate or unwarranted interference”. 159 In doing so, he re-
spected the boundaries of his role, displaying due constraint and limiting
his actions to the means granted to him as a Judge and as President of the
MICT. Arguably, the matter would have been less complicated for Meron,
had he accepted to replace Judge Akay on the Ngirabatware bench, follow-
ing the avenue proposed by the OTP during the hearing of 17 January
2017. 160 In this hypothetical situation, Judge Akay would have preserved
diplomatic immunity due to his continuous assignment to MICT cases.
Nevertheless, disregarding the consolidated practice of seeking the consent
of a judge before altering his or her assignments would have resulted in an
unreasonable compromise with respect to judicial independence. Hence, it
155
Ibid.
156
Meron, 2005, p. 365, see above note 143.
157
MICT Statute, Article 18, see above note 32.
158
Basic Principles on the Independence of the Judiciary, Article 6, see above note 139.
159
Ibid., Article 4.
160

was Meron’s duty to refuse any such replacement; had he replaced Judge
Akay, the resulting bench would have been indirectly determined by the
illegitimate influence of the Government of Turkey on the MICT’s inner
workings. Consequently, Ngirabatware’s right to a fair trial by an inde-
pendent judiciary would have been compressed for the sake of convenience
and, perhaps, expeditiousness. Conflictingly, Judge Meron’s duties man-
dated him to care most about the rights of the accused, while President
Meron had a duty to act in a manner which would ensure the proper func-
tioning of the Mechanism.
As described above, the initiatives of Judge Meron were met by si-
lence on the part of the UN institutions. Meron was joined in his effort by
the Defence Counsel, while the MICT Prosecutor elected to prioritize the
expeditiousness of the Ngirabatware proceedings over judicial independ-
ence. Notwithstanding the adversities, Meron consistently upheld the obli-
gations pertinent to his roles as President and Judge, without letting other
considerations – such as political convenience – influence his actions. His
behaviour is exemplary of individual integrity; displaying adherence to the
values protected by the applicable norms of conduct while remaining with-
in the boundaries set by his roles.
24.3. Institutional, Professional and Personal Integrity:
One and the Same?
Provisions such as Article 9 MICT Statute, titled “Qualification of Judg-
es”, 161 can be found in several instruments establishing internationalized
criminal courts or tribunals. 162 Article 9 MICT Statute requires judges,
among others, to be of “high moral character” and to “possess the qualifi-
cations required in their respective countries for appointment to the highest
judicial offices”. As noted by Bergsmo, the term integrity is – in interna-
tional criminal law – a legal requirement laid down in provisions such as
Article 9 MICT Statute. 163
161
162
See, for example, Statute of the International Criminal Tribunal for the former Yugoslavia,
25 May 1993, Article 13 (http://www.legal-tools.org/doc/b4f63b/); Statute of the Interna-
tional Criminal Tribunal for Rwanda, 8 November 1994, Article 12 (http://www.legal-
tools.org/doc/8732d6/); Rome Statute of the International Criminal Court, 17 July 1998, Ar-
ticle 36 (http://www.legal-tools.org/doc/7b9af9/).
163

Dag Hammarskjöld equates integrity with “respect for law and re-
spect for truth” and with “conscience”. 164 Jacques Lemoine brings “the
moral qualities of dedication, fairness and impartiality” under the concept
of integrity. 165 These notions subsume something wider than what is de-
manded by a narrow interpretation of Article 9 MICT Statute. Some of the
actors in the Akay saga, such as the UNSG and the UN Legal Counsel,
clearly operated within the borders of the law. They followed Article 9
MICT Statute to the letter: Akay indeed forewent the “qualifications re-
quired in [his] respective countr[y] for appointment to the highest judicial
offices”; indeed, he was charged with and convicted for a grave crime.
Logically, following the Statute, he could not be reappointed as a
judge on the roster of the Mechanism. It appears, however, that Akay’s
conviction amounted to undue influence on judicial independence. It also
seems that the response of certain individuals to this issue did not ade-
quately defend this fundamental principle of international justice, resulting
in the non-reappointment of the judge, which can be deemed problematic
from a rule of law perspective.
Those who followed only the letter of Article 9 MICT Statute per-
haps lost sight of other, underlying yet fundamental values of the integrity
standard. They showed neither loyalty nor dedication to a principal actor of
international justice or to the fundamental virtues of truth and transparency.
Others, namely Defence Counsel Peter Robinson and Judge Theodor Mer-
on, can serve as examples acting in line with the integrity standard. It has
to be noted that they were allowed to do so in the roles they were accorded.
Meron, as President of the Mechanism, had to ensure that his chamber
functioned, which is not possible when one of its judges is detained. Rob-
inson had his own interests, as counsel, in fighting for Akay, in whose ab-
sence the procedure pertaining to his client could not proceed.
Nevertheless, both Robinson and Meron seem to have gone beyond
their professional obligations. Robinson explored all possible avenues to
bring the Akay matter to the surface and to the attention of those who could
have made a difference. Similarly to Meron, he attempted to affect Akay’s
situation, or at least make it known to the public. In the end, it is rather dis-
appointing that both were blocked by institutionalism, confidentiality and
an extensive reach of State sovereignty. Nevertheless, although of not much
164
Hammarskjöld, 1962, p. 348, see above note 2 (emphasis added).
165
Jacques Lemoine, The International Civil Servant: An Endangered Species, Martinus
Nijhoff Publishers, The Hague, 1995, p. 257 (emphasis added).

use to Akay, who remains behind bars, their conduct shows that it is possi-
ble to intertwine integrity – understood broadly – and professional obliga-
tions resulting from their specific roles.
The Akay saga has put the integrity of concerned individuals to the
test. While the Government of Turkey was pursuing its national interests,
the UN institutions and international civil servants involved did not pose
the needed resistance. The efforts of the parties which upheld the integrity
standard could not steer the outcome: nevertheless, they represent a mean-
ingful expression of the behaviour to be expected from individuals in such
roles and, as the authors of this chapter hope, provide a lasting example for
the future.
Finally, it must be noted that achieving or acting with integrity is not
a one-time test, and it demands much more than meeting the normative re-
quirements at the moment of appointment to a judicial institution. It is an
ongoing struggle for all international civil servants and high officials in
international justice. This is eloquently described by the concept of self-
oblivion, as expressed by Dag Hammarskjöld – the constant exercise of
force of will, and the careful balancing of one’s personal interests and val-
ues, on the one hand, with the values one has chosen to embrace, profes-
sionally, on the other hand: with a readiness to ‘surrender’ to the latter. The
resulting actions would likely protect the spirit of the law and its founding
principles, in addition to its letter and the obligations that are spelt out:
“[y]ou will find that the freedom of the continual farewell, the hourly self-
surrender, gives to your experience of reality the purity and clarity which
signify–self-realization”. 166
166
Dag Hammarskjöld, Markings, Faber and Faber, London, 1964, p. 77.

25
______
The Disqualification of Judge Frederik Harhoff:

Implications for Integrity
Mohamed Badar and Polona Florijančič *
In 2013, a leaked e-mail message by Judge Frederik Harhoff (the ‘Letter’)

put into question the integrity of the International Criminal Tribunal for the
former Yugoslavia (‘ICTY’). As a result of what he perceived to be a
change in the ICTY jurisprudence concerning aiding, abetting, and joint
criminal enterprise liability after the acquittals in the Gotovina and Markač
Appeals Judgement, the Perišić Appeals Judgement, and the Stanišić and
Simatović Trial Judgement, Judge Harhoff made the following statements
in his Letter:
Right up until autumn 2012, it has been a more or less set
practice at the court that military commanders were held re-
sponsible for war crimes that their subordinates committed
during the war in the former Yugoslavia. […] However, this is
no longer the case. Now apparently the commanders must
have had a direct intention to commit crimes – and not just
knowledge or suspicion that the crimes were or would be
committed. […] The result is now that not only has the court
taken a significant step back from the lesson that commanding
military leaders have to take responsibility for their subordi-
nates’ crimes (unless it can be proven that they knew nothing
about it) – but also that the theory of responsibility under the
specific “joint criminal enterprise” has now been reduced
*
Professor Mohamed Badar holds the Chair in Comparative and International Criminal Law
at Northumbria Law School, Northumbria University, Newcastle. He has published exten-
sively on issues related to comparative and international criminal law, and his work has been
cited by international and national criminal courts. He previously served as Senior Prosecu-
tor and Judge in Egypt (1997-2006). Dr. Polona Florijančič is an independent researcher
who has taught and published in the fields of international criminal law and human rights
law among other fields. She has also conducted field research for the EUROMED justice
project on criminal co-operation and counter-terrorism in the MENA region (2017-2019).
She obtained her Ph.D. in International Trade Law and Development and an LL.M. in Inter-
national Human Rights from Brunel University (London), and an LL.B. from the European
Faculty of Law, Slovenia.

from contribution to crimes (in some way or another) to de-

manding a direct intention to commit crime (and so not just
acceptance of the crimes being committed). Most of the cases
will lead to commanding officers walking free from here on. 1
As a result, Judge Harhoff was declared biased and removed from
the Šešelj case. Some years later, it is argued here that two things are clear:
Judge Harhoff’s disqualification was, in our considered opinion, unjust –
there was no bias on his part that could justify his removal from the Šešelj
case. Furthermore, his concerns about a dangerous change in the jurispru-
dence were legitimate, and his views have been vindicated in subsequent
rulings.
However, there was another element to the Letter, namely specula-
tions about possible external and internal pressures put on fellow judges by
the President of the Tribunal, Theodor Meron, as the reason behind the
change in jurisprudence. Judge Harhoff posed the rhetorical question: “how
[does] this military logic pressure the international criminal justice system?
Have any American or Israeli officials ever exerted pressure on the Ameri-
can presiding judge […] to ensure a change of direction? We will probably
never know”. 2
While the disqualification decision omits any reference to said specu-
lations, they seem to be the de facto reason behind the removal of Judge
Harhoff from the Šešelj case and effectively the ICTY. If this is indeed the
case, such a response sends a very negative signal about the Tribunal that,
apparently, preferred to sweep serious concerns under the rug rather than
allow investigations or open discussions about them, perpetuating the cul-
ture of silence, and discouraging whistleblowing and honest criticism from
within.
25.1. Disqualification without Bias
The Statute of the ICTY guarantees an accused a ‘fair and expeditious trial’
with full respect for the rights of the accused. 3 Article 13 of the Statute en-
1
The International Criminal Tribunal for the former Yugoslavia (‘ICTY’) Judge Frederik
Harhoff’s email, 6 June 2013 annexed to ICTY, Prosecutor v. Stanišić and Župljanin, Ap-
peals Chamber, Prosecution Response to Rule 115 Motion on behalf of Mićo Stanišić seek-
ing admission of additional evidence, 9 July 2013, IT-08-91-A (https://www.legal-tools.org/
doc/956cc2/).
2
Ibid.
3
Statute of the ICTY, 25 May 1993, Article 20 (https://www.legal-tools.org/doc/b4f63b).

25. The Disqualification of Judge Frederik Harhoff: Implications for Integrity
shrines an additional element of the right to fair trial as it requires judges of

the Tribunal to be “persons of high moral character, impartiality and integ-
rity”. This principle is embodied in Rule 15 of the Rules of Procedure and
Evidence, which precludes a judge from sitting in a trial or appeal in any
case in which he or she has a personal interest or concerning which the
judge has or has had any association which might affect his or her impar-
tiality. 4 The Appeals Chamber has observed further that:
A. A Judge is not impartial if it is shown that actual bias ex-
ists.
B. There is an unacceptable appearance of bias if:
i) a Judge is a party to the case, or has a financial or pro-
prietary interest in the outcome of a case, or if the
Judge’s decision will lead to the promotion of a cause
in which he or she is involved, together with one of the
parties. Under these circumstances, a Judge’s disquali-
fication from the case is automatic; or
ii) the circumstances would lead a reasonable observer,
properly informed, to reasonably apprehend bias. 5
On 9 July 2013, Vojislav Šešelj filed a motion seeking the disqualifi-
cation of Judge Frederik Harhoff based on the Letter. 6 On 28 August 2013,
the panel of appointed Judges 7 (‘Special Chamber’) issued a decision (the
‘Disqualification Decision’ or simply, the ‘Decision’) granting this motion
by majority (the ‘Majority’). 8 After deliberating for 18 months, Judge Har-
hoff was removed from the case just six weeks away from pronouncing a
verdict, despite the fact that “the Rules of Procedure and Evidence do not
4
ICTY, Rules of Procedure and Evidence, UN Doc. IT/32/Rev.50, 8 July 2015, adopted pur-
suant to Article 15 of the Statute of the Tribunal, incorporates amendments from 1994 to
November 2015, Rule 15(A) (https://www.legal-tools.org/doc/30df50/).
5
ICTY, Prosecutor v. Furundžija, Appeals Chamber, Judgement, 21 July 2000, IT-95-17/1-A,
paras. 189–190 (‘Furundžija Appeal Judgment’) (https://www.legal-tools.org/doc/660d3f/).
6
ICTY, Prosecutor v. Šešelj, Trial Chamber, Professor Vojislav Šešelj’s Motion for Disquali-
fication of Judge Frederik Harhoff, 9 July 2013, IT-03-67-T (https://www.legal-tools.org/
doc/a7ccdc).
7
It should be mentioned that Judges Moloto and Hall had sat on other cases with Judge Har-
hoff.
8
ICTY, Prosecutor v. Šešelj, Chamber Convened by Order of the Vice-President, Decision on
Defence Motion for Disqualification of Judge Frederik Harhoff and Report to the Vice-
President, 28 August 2013, IT-03-67-T (‘Disqualification Decision’) (https://www.legal-
tools.org/doc/5b4aa1).

provide for a case where a motion for disqualification can be made during
deliberations”. 9
With regards to the Letter, in paragraph 13 of the Decision, the Ma-
jority stated:
By referring to a ‘set practice’ of convicting accused persons
without reference to an evaluation of the evidence in each in-
dividual case […] there are grounds for concluding that a rea-
sonable observer, properly informed, would reasonably appre-
hend bias on the part of Judge Harhoff in favour of conviction
[…]. This appearance of bias is further compounded by Judge
Harhoff’s statement that he is confronted by a professional
and moral dilemma which […] is a clear reference to his diffi-
culty in applying the current jurisprudence of the Tribunal.
In this statement, as well as in the whole Decision, the Majority’s
reasoning disregarded entirely a memorandum sent by Judge Harhoff to
Judge Antonetti, the Presiding Judge in the Šešelj case, as well as the lat-
ter’s report. 10 In the memorandum, Judge Harhoff explicitly clarified the
context and meaning of various parts of the Letter. He explained that it
should have been read in conjunction with the two news articles that he had
previously shared with the same recipients and which gave the necessary
background for understanding the concerns expressed in the Letter. 11 For
example, an article in The Economist noted that the judgments in Perišić
9
ICTY, Prosecutor v. Šešelj, President of the Chamber, Decision to Unseal the Report of the
Presiding Judge to the President of the Tribunal or Alternatively the Judge Designated by
him Regarding the Motion for Disqualification of Judge Harhoff, 4 September 2013, IT-03-
67-T, p. 3 (‘Decision to Unseal the Report’) (https://www.legal-tools.org/doc/e91251).
10
According to Rule 15(B), the Presiding Judge of the Chamber has to confer with the judge
against whom bias is alleged before sending a report to the President of the Tribunal. After
the panel issued the decision to disqualify Judge Harhoff, Judges Antonetti and Lattanzi sent
a joint request for clarification to the panel and the Vice-President drawing their attention to
the fact that neither the report of the Presiding Judge nor the written comments of the Judge
in question had been mentioned in the decision. On the same day, Judge Harhoff also sent a
request that the panel of judges consider the two documents. The ICTY Prosecutor, Serge
Brammertz, sent a motion for review of the decision. Ibid., p. 1.
11
ICTY, Internal Memorandum from Judge Frederik Harhoff to Judge Jean-Claude Antonetti,
Motion for Disqualification of Judge Frederik Harhoff filed by the Accused Vojislav
Šešelj/Report, 8 July 2013, annexed to Prosecutor v. Šešelj, President of the Chamber, Deci-
sion to unseal the report of the Presiding Judge to the President of the Tribunal or alterna-
tively the Judge designated by him regarding the motion for disqualification of Judge Har-
hoff, 4 September 2013, IT-03-67-T (‘Harhoff, Memorandum’) (https://www.legal-tools.org/
doc/e91251/).

and Stanišić and Simatović meant it was now more difficult to convict sen-
ior officials, 12 while an article in the New York Times noted that Stanišić
and Simatović had raised the standard of proof for joint criminal enterprise
(‘JCE’) convictions, and that this was part of a trend in recent jurispru-
dence at the Tribunal that could be viewed as protecting the interests of
more powerful countries. 13 It was these sentiments that Judge Harhoff
sought to echo in his Letter, by noting that this change of practice would
henceforth probably make it very hard to convict any of the superior mili-
tary commanders; he considered the new requirements introduced would be
very difficult to prove, for example, the specific direction requirement for
aiding and abetting (see Section 25.2.1.). 14
Furthermore, Judge Harhoff asserted that the Letter was never in-
tended as a legal intervention, 15 but rather as an informal private communi-
cation and was for that reason “not very clear on the distinction between
JCE, aiding and abetting and command responsibility”. 16 He considered
that it went “without saying that no one can be convicted of a crime unless
the evidence convincingly supports a finding of guilt”, but he did not high-
light this because it was not the gist of the Letter. 17 Rather his concern was
with the Appeals Chamber’s acquittals, which, in his understanding, pre-
sented a departure from the Tribunal’s practice and made it impossible to
convict generals in the future. 18
In his own words, in terms of JCE, he considered the new practice to
require “more than just the degree of intent associated with knowledge, i.e.
that the supreme commanders could only be convicted in the future if a
stronger degree of intent could be proven at trial”. 19
Finally, Judge Harhoff also clarified that the ‘moral and professional
dilemma’ he referred to at the end of the Letter was directed at the potential
12
“Two puzzling judgments in the Hague: The International Criminal Tribunal for the Former
Yugoslavia Lost Credibility”, The Economist, 1 June 2013 (available on its web site).
13
Eric Gordy, “What Happened to the Hague Tribunal?”, The New York Times, 2 June 2013
14
See, for example, the specific direction by the accomplice, Harhoff, Memorandum, p. 3, see
above note 11.
15
Ibid., p. 2.
16
Ibid.
17
Ibid., pp. 2–3.
18
Ibid., p. 1.
19
Ibid., p. 3.

situation in which he might “discover that [the] Tribunal had somehow

submitted to pressure or influence from military stakeholders outside the
Tribunal”. 20 By his own accord, this may not have been an accurate depic-
tion of the impact of the change of the Tribunal’s practice, but it did “not in
any way suggest a belief or indeed a desire” on his part to have generals
convicted irrespectively of the evidence of their mens rea and actus reus. 21
Perhaps most important for the question of bias vis-à-vis Šešelj is the
fact that the Letter does not mention either him or the trial against him at
all. 22 The main point about criminal responsibility only relates to ‘senior
military officers’, which does not apply to Šešelj, because he was not a sen-
ior military officer and was not charged with having wielded command au-
thority over military forces. On the other hand, there is no prejudice ex-
pressed in the Letter against Serbs or Muslims or Croats, or indeed against
generals as such. 23 Furthermore, the Presiding Judge in the trial vouched
for Judge Harhoff by stating that he had shown great professionalism and
proved himself completely impartial towards the accused. 24
Despite this, the Decision on Judge Harhoff’s disqualification states:
“With regard to Judge Harhoff’s reference to military commanders, the
Chamber notes that the accused is charged with participating in a JCE by
inter alia directing paramilitary forces including a group known as
‘Šešelj’s men’”. 25 This statement is rather disingenuous since it was pre-
cisely because of the fact that Šešelj did not hold any official rank, title or
authority in the military and did not exercise conventional command re-
sponsibility over those committing crimes, that the Prosecution could only
claim an ‘ideological and moral’ authority in the context of JCE charges. 26
What is more, the Trial Chamber in Šešelj had already in its Rule 98bis de-
20
Ibid.
21
Ibid.
22
Ibid., p. 1.
23
Ibid.
24
“Antonetti: Don’t let Harhoff be ‘doubly victimized’’, Sense Agency, 4 September 2013
25
Disqualification Decision, para. 12, see above note 8, referring to ICTY, Prosecutor v. Šešelj,
Third Amended Indictment, 7 December 2007, IT-03-67-T, paras. 8, 10 (https://www.legal-
tools.org/doc/f427f1/).
26
ICTY, Prosecutor v. Šešelj, Transcript, 19 February 2009, IT-03-67-T, T. 3815 (Testimony of
prosecution expert witness Theunens); ICTY, Prosecutor v. Šešelj, Trial Chamber, Prosecu-
tion’s Closing Brief, 5 February 2012, IT-03-67-T, para. 593 (https://www.legal-tools.org/
doc/61hng5/).

cision (both in the majority and dissenting opinions) expressed a preference

for instigation as the mode of liability most appropriate to describe the ac-
tions of the accused. 27
In his report on the Letter, Judge Antonetti reminded that other judg-
es had made public statements on the jurisprudence of the Tribunal, but
they had not been disqualified. 28 Similarly, the Prosecution stated that “in
criticising recent jurisprudence, [the Letter] was no different from many
other public statements disagreeing with the jurisprudence of the Tribu-
nal”. 29 Despite this, the Majority claimed that the Letter did differ from
other such public statements made by judges in that Judge Harhoff referred
to what he perceived as a ‘set practice’ of convicting military commanders
for the war crimes committed by their subordinates and made clear his dis-
satisfaction with his perceived change in the Tribunal’s direction in this
regard. 30 The Majority bizarrely implies that the ‘set practice’ here meant a
practice of convictions without evaluating the evidence in each individual
case. 31 Such a strange implication could only be made by an ‘informed
person’ had the person a) not considered the Letter in its entirety or b) not
known anything about Judge Harhoff’s professionalism or indeed his pre-
vious adjudications at the Tribunal. It is thus not surprising that the Majori-
ty conveniently declared the consideration of those adjudications to be ir-
relevant. 32
In this context, it is important to note that Judge Harhoff “was not
just any judge at the tribunal”. 33 He participated from the very beginning in
the efforts to establish liability for international crimes. He worked as a
Senior Legal Officer at the International Criminal Tribunal for Rwanda
(‘ICTR’) in its first three years of existence, was a member of the Danish
delegation at the Rome Conference, and served three years as a Senior Le-
27
ICTY, Prosecutor v. Šešelj, Transcript, 4 May 2011, IT-03-67-T, T. 16827 (Rule 98bis pro-
ceedings).
28
Decision to Unseal the Report, p. 2, see above note 9.
29
Disqualification Decision, para. 3, see above note 8; ICTY, Prosecutor v. Šešelj, Prosecu-
tion’s Response to Motion for Disqualification of Judge Frederick Harhoff, 17 July 2013, IT-
03-67-T, para. 5 (https://www.legal-tools.org/doc/afc254/).
30
Disqualification Decision, para. 12, see above note 8.
31
Ibid., para. 13.
32
Ibid., para. 9.
33
Martin Burcharth, “The email that went around the world”, Information, 7 December 2013

gal Officer at the ICTY where he was later appointed judge. Furthermore,
he has worked as an Associate Professor at the University of Copenhagen
and Professor of International Law at the University of Southern Den-
mark. 34 He sat as a judge in four Trial Chambers at the ICTY, and an evalu-
ation of this work by the Special Chamber would have further been im-
portant in terms of countering Šešelj’s submission that there was a specific
anti-Serb bias present on the part of Judge Harhoff. He, in fact, took part in
convicting the Bosnian Serb general Dragomir Milošević and the Bosnian
Serb interior minister and the security chief in Banja Luka, but he also took
part in convicting the Bosnian Muslim general Rasim Delić for war crimes
committed by mujahideen warriors. Furthermore, the two Appeals Cham-
ber judgments which Judge Harhoff criticized in the Letter concern both
Croats and Serbs. 35 He does refer as an example only to the “ethnic cleans-
ing of non-Serbs as part of the common purpose” of the JCE as alleged in
many indictments, but as he explains in his memorandum, this does not
imply that he holds JCE-expulsions of other ethnicities only as a matter for
the Serbs. 36
Writing his dissenting opinion to the Decision on the disqualification,
Judge LIU, expressed his concern with what he called “the cursory ap-
proach taken by the Majority” and its failure to properly contextualize the
statements or take into account the highly informal nature of the Letter. 37
Most importantly, LIU stated that he was not convinced that Judge Har-
hoff’s failure to refer to “an evaluation of the evidence in each individual
case” 38 creates the appearance that he is reluctant to apply the Tribunal’s
law and rules of procedure and evidence or that he is in favour of convic-
tion of accused before the Tribunal. 39 He also disagreed with the Majority’s
conclusion that the reference to ‘a professional and moral dilemma’ reflect-
ed a difficulty on Judge Harhoff’s part to apply the current jurisprudence of
the Tribunal. 40
The defence of the former Bosnia and Herzegovina (‘BiH’) Army
Main Staff commander, Rasim Delić, also called for a review of his judge-
34
Ibid.
35
Harhoff, Memorandum, p. 1, see above note 11.
36
Ibid.
37
Disqualification Decision, Dissenting Opinion of Judge Liu, paras. 6–7, see above note 8.
38
Ibid., para. 13.
39
Ibid., para. 7.
40
Ibid.

ment on the basis of Judge Harhoff’s alleged ‘bias’. However, the Appeals
Chamber dismissed the motion for review since Delić had already passed
away at the time and neither his next-of-kin nor Counsel had locus standi
in judicio. 41 The saga, nonetheless, received a more interesting update in
2016 with the appeal in the Stanišić and Župljanin case. 42 Perhaps unsur-
prisingly, the appellants seized the opportunity and claimed that the dis-
qualification of Judge Harhoff from the Šešelj proceedings, although not
legally binding, must lead to the same result in the proceedings against
them. 43 They submitted that they were specifically included in the category
of persons likely to be convicted as a result of Judge Harhoff’s predisposi-
tion, 44 and repeated the finding of the Majority in the Special Chamber that
his views demonstrated a belief in convicting accused persons under JCE
liability without proving the requisite legal elements. 45
One could hardly argue with their logic that if there had been a bias
in terms of sitting as a judge on the Šešelj trial, it would equally have exist-
41
ICTY, Prosecutor v. Delić, Appeals Chamber, Decision on Defence Motion for Review, 17
December 2013, IT-04-83-R.1, p. 2 (https://www.legal-tools.org/doc/d61bd1/).
42
IT-08-91-A (‘Stanišić and Župljanin Appeal Judgement’) (https://www.legal-tools.org/doc/
e414f6/).
43
ICTY, Prosecutor v. Stanišić and Župljanin, Appeals Chamber, Additional Appellant’s brief
on behalf of Mićo Stanišić, 26 June 2014, IT-08-91-A, paras. 33–52 (‘Stanišić Additional
Appeal Brief’) (https://www.legal-tools.org/doc/509154/); ICTY, Prosecutor v. Stanišić and
Župljanin, Stojan Župljanin Supplement to Appeal Brief (Ground Six), 26 June 2014, IT-08-
91-A, paras. 4–13, 28-29 (‘Župljanin Additional Appeal Brief’) (https://www.legal-tools.org/
doc/e6a556/); ICTY, Prosecutor v. Stanišić and Župljanin, Additional brief in reply on be-
half of Mićo Stanišić, 25 July 2014, IT-08-91-A, paras. 28–30 (‘Stanišić Additional Reply
Brief’) (https://www.legal-tools.org/doc/48470a/). The Prosecution argued, amongst other
things, that the unanimous Trial Judgment in Stanišić and Župljanin shows that the Special
Chamber’s majority interpretation of the Letter was incorrect and that Harhoff’s Memoran-
dum was erroneously considered to be immaterial. See ICTY, Prosecutor v. Stanišić and
Župljanin, Appeal Hearing, 16 December 2015, AT. 133-134 (‘Appeal Hearing’); The Prose-
cution also argued that a conclusion contrary to the Disqualification Decision in Prosecutor
v. Šešelj would be consistent with prior instances where different chambers reached different
conclusions based on different arguments and evidence. ICTY, Prosecutor v. Stanišić and
Župljanin, Prosecution Consolidated Supplemental Response Brief, 18 July 2014, IT-08-91-
A, para. 31 (https://www.legal-tools.org/doc/6301a0/).
44
Appeal Hearing, AT. 79, 84, 152, see above note 43.
45
Stanišić Additional Appeal Brief, paras. 65–71, 73, 78-9 (referring to Letter pp. 3–4), see
above note 43; Župljanin Additional Appeal Brief, paras. 4, 10-13, see above note 43. See
Appeal Hearing, 16 December 2015, AT. 149-154, see above note 43; Stanišić Additional
Reply Brief, paras. 12, 34-35, see above note 43.

ed in their case, yet the Appeals Chamber found the opposite. Regarding
both the ‘deep professional and moral dilemma’ expressed in the Letter as
well as the ‘set practice’ 46 described therein, the Appeals Chamber accept-
ed the explanations from Judge Harhoff’s memorandum 47 and, taking into
account the whole Letter, it was not convinced that it would lead a reason-
able observer properly informed to conclude that Judge Harhoff was pre-
disposed to convicting the accused persons. 48 Thus, the Appeals Chamber
reached drastically different conclusions from the Special Chamber, yet it
seems that the only difference between the Šešelj and the Stanišić and
Župljanin cases was that the former was still ongoing at the time, while the
Trial Judgment in the latter had already been issued at the date of the publi-
cation of the Letter. 49 A rather superficial difference and hardly one which
could explain why the same judge, holding the same convictions, would be
biased in one and not the other, particularly since bias was alleged on the
basis of a predisposition against the faithful application of the law. 50
While strongly criticizing Judge Harhoff’s views on the law as ex-
pressed in the Letter and stating that they do not align with the jurispru-
dence of the Tribunal, 51 the Appeals Chamber recalled that personal con-
victions and opinions of ICC Judges are not in themselves a basis for infer-
ring a lack of impartiality. 52 Furthermore, it stated that the Trial Chamber
had applied the correct legal standard for JCE liability 53 to the circum-
stances of the case in question and not the views expressed in the Letter. 54
46
Letter, p. 1, see above note 1.
47
Stanišić and Župljanin Appeal Judgement, para. 56, see above note 42; Harhoff, Memoran-
dum, p. 3, see above note 11.
48
Ibid., para. 56.
49
Ibid., para. 54.
50
Ibid., para. 37, fns. 148, 149.
51
Ibid., para. 52.
52
ICTY, Prosecutor v. Delalić et al., Appeals Chamber, Judgement, 20 February 2001, IT-96-
21-A, para. 699 (‘Čelebići Appeal Judgement’) (https://www.legal-tools.org/doc/051554/),
referring to Prosecutor v. Anto Furundžija, Appeals Chamber, Judgement, para. 203 (‘Fu-
rundžija Appeal Judgement’) (https://www.legal-tools.org/doc/660d3f/). See also Scottish
High Court of Justiciary, Hoekstra v. HM Advocate, Judgment, 2000; New South Wales
Court of Appeal, Newcastle City Council v. Lindsay, Judgment, 2004, paras. 35–36.
53
ICTY, Prosecutor v. Stanišić and Župljanin, Trial Chamber, Judgement, vol. 1, 27 March
2013, IT-08-91-T, paras. 99–106 (‘Stanišić and Župljanin, Trial Judgement’) (https://
www.legal-tools.org/doc/2ed57f/).
54
The following paragraphs from Stanišić and Župljanin Appeal Judgement are significant in
this regard, paras. 51–53, see above note 42:

While the Appeals Chamber’s reasoning reflects slight confusion

about what exactly it considered Judge Harhoff’s views on the applicable
law to have been at the time, it seemed to rectify the matter by considering
that, regardless, “Judge Harhoff as a Judge of the Tribunal could disabuse
his mind of any irrelevant personal beliefs or predispositions”. 55
The Appeals Chamber particularly notes that a reasonable observer properly informed
would be aware that: (i) Judge Harhoff’s comments only generally concern the mode of
liability of joint criminal enterprise; (ii) none of the cases referred to by Judge Harhoff
altered the scope of joint criminal enterprise liability, contrary to his assertions; and (iii)
it has never been the law or practice, contrary to Judge Harhoff’s statement, to “convict
leaders for the crimes committed with their knowledge within a framework of a common
goal”. Further, it is the Appeals Chamber’s view that a reasonable observer properly in-
formed of all relevant circumstances would be aware of the relevant jurisprudence of the
Tribunal. A reasonable observer would therefore be aware that knowledge on the part of
an accused that crimes were committed is insufficient to find an accused responsible un-
der either the first or the third category of joint criminal enterprise.
The Appeals Chamber notes that a reasonable observer would also consider the fact
that Judge Harhoff neither distinguished the facts nor the respective modes of liability
relevant to the Gotovina and Markač Appeal Judgement, the Perišić Appeal Judgement,
and the Stanišić and Simatović Trial Judgement. Based on his views on the law and prac-
tice, which do not align with the Tribunal’s jurisprudence, coupled with his sweeping
generalisations of the judgements in question, Judge Harhoff expressed deep dissatisfac-
tion with what he considered a change in “set practice” at the Tribunal. However, the
Appeals Chamber recalls that personal convictions and opinions of Judges are not in
themselves a basis for inferring a lack of impartiality. Additionally, a reasonable observ-
er, properly informed, would take into account that at no time did Judge Harhoff direct
his comments to Stanišić and Župljanin. Thus, the Appeals Chamber is not convinced by
Stanišić’s submission that Judge Harhoff was predisposed to convicting Stanišić and
Župljanin.
Regarding Župljanin’s argument that sections of the Trial Judgement indicate that
the wrong mens rea standard was applied, the Appeals Chamber is not convinced that a
reasonable observer would consider that these cited sections reflect, or were influenced,
by the same opinions that Judge Harhoff expressed in the Letter. In this regard, the Ap-
peals Chamber notes that the Trial Chamber applied the correct legal standard for JCE
liability to the circumstances of the case and not the views expressed in the Letter. Fur-
ther, a reasonable observer would also take into account Judge Harhoff’s statement that
he did not set out in the Letter all of the applicable principles necessary to assess crimi-
nal liability, including proof beyond a reasonable doubt.
55
Ibid., para. 55, referring to ICTY, Prosecutor v. Šainović et al., Appeals Chamber, Judge-
ment, 23 January 2014, IT-05-87-A, para. 181 (‘Šainović et al., Appeal Judgement’) (https://
www.legal-tools.org/doc/81ac8c/); Furundžija Appeal Judgement, paras. 196–197, see
above note 52.

25.2. Was Judge Harhoff Really Wrong about a Change in

Jurisprudence?
While the Letter is not written in legal language and thus seems to com-
pound JCE with aiding and abetting, Judge Harhoff has explained in his
memorandum that his main concern was with the use of the ‘specific direc-
tion’ requirement for aiding and abetting, which for him presented a parting
from set practice. While the compounding of JCE and aiding and abetting
may seem unprofessional, it is hardly surprising in the context of the ICTY
where the ‘catch-all’ practice has seen many accused charged and even
convicted under several modes of liability for the same conduct. Although
efforts have been made to avoid this, it is an indisputable characteristic of
the Tribunal. Judge Harhoff’s use of a sort of layman explanation of the
situation is, in fact, not far off in describing the practice of catching those
responsible for war crimes ‘one way or another’.
Even before Judge Harhoff’s Letter was made public, the series of
acquittals had provoked a storm of complaints from international lawyers,
human rights groups and other judges at the court, who claimed in private
that the rulings had abruptly rewritten legal standards that had been applied
in earlier cases. 56 So, was there an actual departure from set jurisprudence?
25.2.1. Specific Direction
The specific direction standard was applied at the appeal in Perišić. The
case concerned a Serbian general, who was convicted at trial for having
aided and abetted the crimes committed by the Army of Republika Srpska
(‘VRS’) in Sarajevo and Srebrenica, through the provision of weapons and
personnel. At the appeal, however, the Judgment stated that when the ac-
cused is remote from the crime, they have to ‘specifically direct’ their as-
sistance towards the perpetration of specific crimes and not only generally
towards the realization of activities which could be either lawful or unlaw-
ful. 57 While it established that the assistance policy was set at a higher po-
litical level, its implementation would have automatically satisfied the spe-
cific direction requirement had it been criminal as such. 58 However, since
the policy was aimed at supporting and assisting the VRS – an army wag-
56
Marlise Simons, “Judge at War Crimes Tribunal Faults Acquittals of Serb and Croat Com-
manders”, The New York Times, 14 June 2013 (available on its web site).
57
ICTY, Prosecutor v. Perišić, Appeals Chamber, Judgement, 28 February 2013, IT-04-81-A
(‘Perišić, Appeal Judgement’) (https://www.legal-tools.org/doc/f006ba/).
58

ing war, not a criminal organization – and its general war effort, not specif-
ic crimes, the specific direction requirement was not considered to have
been met. 59
Similarly, the Stanišić and Simatović Trial Judgment affirmed that
crimes had been committed and detailed the connections between the ac-
cused parties and the physical perpetrators. It further affirmed the existence
of a JCE to create ethnically homogeneous populations and concrete con-
tributions to the realization of this enterprise. Despite this, it held that in
order to establish guilt, evidence would have to prove that the support pro-
vided to the physical perpetrators was ‘specifically directed towards the
commission of the crimes’ that is “specifically directed to assist, encourage,
or lend moral support to the perpetration of [the] crime”. 60
Judge Harhoff saw the specific direction requirement as a dangerous
departure from previous jurisprudence, whereas both panels considering his
bias claimed that there was no such departure. Other commentators at the
time also considered the specific direction as established jurisprudence
based on the fact that in Vasiljević, as well as in Jokić, the Tribunal deter-
mined liability for aiding and abetting on a finding that there was a specific
direction to assist the perpetration of the crimes. Thus, it has been argued
that the Tribunal in Perišić, as well as in Stanišić and Simatović, did not
depart from previous standards but that, instead, the peculiar circumstances
of these cases directed a different outcome (that is, the fact that the accused
were officials in one country while the armed conflict was unfolding and
crimes were committed in another). However, to say this is to mask the fact
that the jurisprudence on specific direction was far from ‘established’ up
until that point and, if anything, there were more reasons to find, as Judge
Harhoff did, a departure from previous jurisprudence than its application.
The ‘specific direction’ requirement in aiding and abetting was, in
fact, part of the jurisprudence at the Tribunal since Tadić, that is, since the
introduction of the concept of JCE. 61 However, Tadić did not cite any prior
59
Ibid., para. 53.
60
ICTY, Prosecutor v. Stanišić and Simatović, Trial Chamber, Judgement, vol. 2, 30 May 2013,
IT-03-69-T, para. 1264 (https://www.legal-tools.org/doc/698c43/).
61
ICTY, Prosecutor v Tadić, Appeals Chamber, Judgement, 15 July 1999, IT-94-1-A, pa-
ra. 229(iii) (https://www.legal-tools.org/doc/8efc3a/):
(iii) The aider and abettor carries out acts specifically directed to assist encourage or
lend moral support to the perpetration of a certain specific crime (murder, extermination,
rape, torture, wanton destruction of civilian property, etc.) and this support has a sub-

source on ‘specific direction’, and it used it merely to justify a lack of any

such standards in determining liability under JCE. As such, the ‘specific
direction’ was an obiter dictum and one which arguably served judicial cre-
ativity in the way of widening the interpretation of the scope of criminal
liability, but then ironically, in Perišić, it ended up being used to overly re-
strict this scope. Even Judge Ramaroson, one of the judges in the Perišić
Appeals majority, pointed out in his separate opinion that in Tadić, the Ap-
peals Chamber merely tried to differentiate between JCE and aiding and
abetting liability and did not envisage specific direction as an essential
component of the actus reus of the latter. 62
What is more, there was generally no agreement among the majority
in Perišić as to the precise meaning of ‘specific direction’, and only one
opinion actually viewed it as it was described in the majority judgment,
that is, as an essential component of the actus reus. For their part, Judges
Agius and Meron explained that it should fall within the mental element as
a purposive mens rea, fulfilled when an individual “specifically aimed to
assist relevant crimes”. 63 Ramaroson considered the requirement to be part
of the mens rea, if anything, but that it could not be dependent on geo-
graphical or temporal distance from the final crime, as the majority implied
by requiring explicit consideration of specific direction only in such cir-
stantial effect upon the perpetration of the crime. By contrast, in the case of acting in
pursuance of a common purpose or design, it is sufficient for the participant to perform
acts that in some way are directed to the furthering of the common plan or purpose.
62
Perišić, Appeal Judgement, Opinion Séparée du Juge Ramaroson sur la Question de la Visée
Spécifique dans la Complicité par Aide et Encouragement, paras. 2–4, see above note 57. In
the same vein, the Šainović et al., Appeal Judgement ultimately concluded that the Tadić
discussion was not aimed at systematically defining aiding and abetting liability (as was
done in Furundžija), but was instead included in order to better defining joint criminal en-
terprise, see para. 1623, see above note 55. See also ICTY, Prosecutor v. Aleksovski, Appeals
Chamber, Judgement, 24 March 2000, IT-95-14/1-A, para. 163 (https://www.legal-tools.org/
doc/176f05/), see also ICTY, Prosecutor v. Blagojević and Jokić, Appeals Chamber, Judge-
ment, 9 May 2007, IT-02-60-A (‘Blagojević and Jokić, Appeal Judgement’)
(https://www.legal-tools.org/doc/c32768/), which similarly noted that Tadić Appeal only
sought to contrast JCE with aiding and abetting and was not a complete statement on the law
of aiding and abetting.
63
Perišić, Appeal Judgement, Joint Separate Opinion of Judges Theodor Meron and Carmel
Agius, para. 3, see above note 57; Norman Farrell, “Attributing Criminal Liability to Corpo-
rate Actors: Some Lessons from the International Tribunals”, in Journal of International
Criminal Justice, 2010, vol. 8, no. 3, p. 890: “such a requirement is not part of either the ac-
tus reus or mens rea of aiding and abetting”.

cumstances. 64 The mere disagreements on the essential questions about the

nature of the ‘specific direction’ element put into question the assertion that
it was established jurisprudence prior to Perišić. Furthermore, Judge LIU
rejected the very existence of the specific direction condition, claiming the
majority was introducing an additional requirement, never analysed in pre-
vious cases, which would make it more difficult to convict those “responsi-
ble for knowingly facilitating the most grievous crimes”. 65
Judge LIU’s opinion, and thereby Judge Harhoff’s opinion as well,
has since been vindicated by the Special Court of Sierra Leone (‘SCSL’) in
the Charles Taylor Judgment and by the ICTY Judgments in Šainović, Po-
pović and Stanišić and Simatović. It has further been noted that the Statute
of the International Criminal Court (‘ICC’) holds no such requirement for
aiding and abetting. 66
To understand the confusion, one has to look at the relevant case law.
In Furundžija, which presented an actual detailed study of the elements of
aiding and abetting, no specific direction requirement was identified. 67 Fu-
rundžija and the subsequent jurisprudence specified the actus reus as
providing assistance to a crime by making a substantial contribution or
having a substantial effect on its perpetration. 68 This was described as as-
64
Perišić, Appeal Judgement, Opinion Séparée du Juge Ramaroson, paras. 7–8, see above note
57; Perišić, Appeal Judgement, para. 39:
not all cases of aiding and abetting will involve proximity of an accused individual’s rel-
evant acts to crimes committed by principal perpetrators. Where an accused aider and
abettor is remote from relevant crimes, evidence proving other elements of aiding and
abetting may not be sufficient to prove specific direction. In such circumstances, the
Appeals Chamber, Judge Liu dissenting, holds that explicit consideration of specific di-
rection is required.
65
Ibid., Partially Dissenting Opinion of Judge Liu, para. 3.
66
Dhruv Sharma, “Specific Direction: An Unspecific Threshold”, in Groningen Journal of
International Law, 2019, vol. 6, no. 2, p. 320; Antonio Coco and Tom Gal, “Losing Direc-
tion: The ICTY Appeals Chamber’s Controversial Approach to Aiding and Abetting in
Perišić”, in Journal of International Criminal Justice 12, 2014, vol. 12, no. 2, p. 358.
67
ICTY, Prosecutor v. Furundžija, Trial Chamber, Judgement, 10 December 1998, IT-95-17/1-
T, paras.193-226 (actus reus) and 236-241 (mens rea) (‘Furundžija Trial Judgement’)
(https://www.legal-tools.org/doc/e6081b/) endorsed, inter alia, by ICTY, Prosecutor v.
Blaškić, Appeals Chamber, Judgement, 29 July 2004, IT-95-14-A, para. 46 (https://
www.legal-tools.org/doc/88d8e6/).
68
Furundžija Trial Judgement, para. 235, see above note 67; see also Special Court for Sierra
Leone, Prosecutor v Taylor, Appeals Chamber, Judgment, 26 September 2013, SCSL-03-01-
A, para. 368 (‘Taylor Appeal Judgement’) (https://www.legal-tools.org/doc/3e7be5/). For an

sistance which increased the likelihood that the crime would be perpetrated
or that it could be perpetrated in a certain manner. 69 As for the mens rea,
the aider and abettor must have knowledge that the assistance will substan-
tially contribute to the commission of the crime. 70 This standard does not
imply certainty but rather the knowing acceptance of a risk that, in the or-
dinary course of events, the behaviour will substantially contribute to the
crime. 71 Unlike a member of a JCE, an aider and abettor does not need to
share the principal perpetrator’s criminal intent.
Blagojević and Jokić Appeal Judgment was the first appellate judg-
ment to deal directly with this matter. It noted that the Blaškić Appeals
Judgment’s confusing approach cited both the Vasiljević Appeal Judgment
as well as the Furundžija Trial Judgment, which had conflicting positions
on the matter. 72 The Judgment held that, while the Tadić Appeal Judgment
had never been explicitly departed from, other appeals judgments had not
included a specific direction requirement. This could be explained by “the
fact that such a finding will often be implicit in the finding that the accused
has provided practical assistance to the principal perpetrator which had a
substantial effect on the commission of the crime”. 73 The Chamber thus
considered it as part of the actus reus. In so finding, the Blagojević and
overview, see Antonio Cassese, Paola Gaeta et al., Cassese’s International Criminal Law,
3rd edn., Oxford University Press, 2013, at pp. 193 et seq.
69
ICTY, Prosecutor v. Tadić, Trial Chamber, Opinion and Judgement, 7 May 1997, IT-94-1-T,
para. 688 (https://www.legal-tools.org/doc/0a90ae/). This standard is usually deemed to be
higher than the ‘significant’ contribution demanded for a JCE. See Judgment, ICTY, Prose-
cutor v. Kvočka et al., Appeals Chamber, Judgement 28 February 2005, IT-98-30/1, para. 97
(https://www.legal-tools.org/doc/006011/), and ICTY, Prosecutor v. Gotovina et al., Appeals
Chamber, Judgement, 16 November 2012, IT-06-90, para. 149 (‘Gotovina Appeal Judge-
ment’) (https://www.legal-tools.org/doc/03b685/).
70
ICTY, Prosecutor v. Mrkšić et al., Appeals Chamber, Judgement, 5 May 2009, IT-95-13-1-A,
para. 49 (https://www.legal-tools.org/doc/40bc41/). See also ICTY, Prosecutor v. Orić, Ap-
peals Chamber, Judgement, 3 July 2008, IT-03-68-A, para. 43 (https://www.legal-tools.org/
doc/e053a4/).
71
SCSL, Prosecutor against Brima, Trial Chamber, Judgement, 20 June 2007, SCSL-04-16-T,
para. 776 (https://www.legal-tools.org/doc/87ef08/); Furundžija Trial Judgment, para. 246,
see above note 67; ICTY, Prosecutor v Blaškić, Trial Chamber, Judgement, 3 March 2000,
IT-95-14-T, para. 287 (https://www.legal-tools.org/doc/e1ae55/); ICTY, Prosecutor v. Orić,
Trial Chamber, Judgement, 30 June 2006, OT-03-68-T, para. 288 (https://www.legal-
tools.org/doc/37564c/). See also The Hague Court of Appeal, Judgment, Prosecutor v. van
Anraat, 9 May 2007, 2200050906-2, para. 11.16 (https://www.legal-tools.org/doc/1e1b4b/).
72
Blagojević and Jokić, Appeal Judgement, paras. 185–188, see above note 62.
73
Ibid., para. 189.

Jokić Appeal Judgment failed to articulate a definite and unequivocal posi-

tion on whether ‘specific direction’ was required or not under the law of
aiding and abetting, and could be read to support or reject ‘specific direc-
tion’. The Appeals Chamber in Mrkšić and Šljivančanin interpreted Blago-
jević as “confirm[ing] that ‘specific direction’ is not an essential ingredient
of the actus reus of aiding and abetting”. 74 Later, in Lukić and Lukić, the
Appeals Chamber again confirmed this interpretation and held that “there
[was] no “cogent reason” to depart from this jurisprudence”. 75 However, on
this point, the ICTY Appeals Chamber was not unanimous. Judge Güney
was unconvinced by the majority’s reasoning for not departing from the
Mrkšić and Šljivančanin Appeals Judgment. He found that the facts of the
Lukić and Lukić case did not warrant consideration of the specific direction
question, but that, in any event, the Mrkšić and Šljivančanin Appeals
Judgment’s consideration of the issue should be seen as an obiter dictum,
and that specific direction was likely already implicit in the actus reus def-
inition. 76 Judge Agius also rejected the majority’s analysis of the issue,
finding that the Mrkšić and Šljivančanin Appeal Judgment had departed
from past jurisprudence and was not supported by the Blagojević and Jokić
Appeal Judgment. However, Judge Agius found that the ‘specific direction’
requirement was implicitly satisfied by the facts of the Lukić and Lukić
case. 77
The Appeals Chamber in Perišić, in one way or another, dismissed
previous jurisprudence which did not take specific direction into account. It
claimed that Mrkšić neither intended to depart from well-established juris-
prudence nor provided adequate reasons to do so. 78 From Blagojević et al.,
it drew the conclusion that while ‘specific direction’ may be implied in
some cases, in others, it needed to be analysed and proven separately. 79
Still, it dismissed other jurisprudence on the basis that it was not dealing
with defendants who were not proximate to the crimes and were thus irrel-
74
ICTY, Prosecutor v. Mrkšić and Šljivančanin, Appeals Chamber, Judgement, 5 May 2009,
IT-95-13-1-A, para. 159 (https://www.legal-tools.org/doc/40bc41/).
75
ICTY, Prosecutor v. Lukić and Lukić, Appeals Chamber, Judgement, 4 December 2912, IT-
98-32/1-A, paras. 159, 424 (https://www.legal-tools.org/doc/da785e/).
76
Ibid., Separate and Partially Dissenting Opinion of Judge Güney, paras. 10–11.
77
Ibid., Separate Opinion of Judge Agius, paras. 1–6.
78
Perišić, Appeal Judgement, paras. 32–36, see above note 57.
79
Ibid., para. 15.

evant. 80 However, neither Brđanin nor Krstić, for example, were present at
the place where crimes were being committed, for which they were found
responsible as aiders and abettors. 81 Coco and Gal thus find Brđanin’s con-
duct in many ways similar to Perišić’s. 82
In the context of the ICC, one commentator called the ‘specific direc-
tion’ requirement “counter-intuitive to the objectives of the ICC as it unrea-
sonably increases evidentiary requirements at the Court and consequently
makes the fight against impunity, an already challenging task, even more
difficult”. 83 The ICTY Office of the Prosecutor claimed that it had no foun-
dation in customary international law, was contrary to prior Appeals
Chamber jurisprudence, lacked coherence as a legal doctrine and most im-
portantly, undermined respect for international humanitarian law. 84
Finally, in the Šainović Appeal Judgement, delivered on 23 January
2014, the Perišić Appeal Judgement’s reasoning was unequivocally over-
turned and the ‘specific direction’ requirement was found to be in “direct
and material conflict with the prevailing jurisprudence […] and with cus-
tomary international law”. 85 The same conclusion was reached by the Ap-
peals Chamber of the SCSL in the Taylor Appeal Judgement. 86
The majority in the Šainović Appeal Judgment (Judge Tuzmukha-
medov dissenting 87) found the Perišić Appeals Chamber’s interpretation of
Mrkšić and Šljivančanin Appeal Judgement and the Lukić and Lukić Ap-
peal Judgement to be in effect at odds with the plain reading of the judg-
ments and to have disregarded positions expressly taken and clearly set out
80
Ibid., para. 38 and fn. 100.
81
Coco and Gal, 2014, pp. 356–357, see above note 66.
82
Ibid., p. 356.
83
Sharma, 2019, p. 320, see above note 66 .
84
ICTY, Office of the Prosecutor Statement of the ICTY Prosecutor, “Statement of the ICTY
Prosecutor Serge Brammertz”, 24 June 2013 (‘Statement of Serge Brammertz’).
85
Šainović et al., Appeal Judgement, para. 1650, see above note 55.
86
Taylor Appeal Judgement, paras. 471–486, see above note 68.
87
Šainović et al., Appeal Judgement, Dissenting opinion of Judge Tuzmukhamedov, paras. 40–
47, see above note 55, Judge Tuzmukhamedov declined to take a position on specific direc-
tion, arguing instead that it was not necessary to determine the issue on the facts of the case
because Lazarević, commander of the VJ’s Priština corps stationed in Kosovo, was not geo-
graphically remote from the crime scene. The Majority, in footnote 5320, explained that the
issue of specific direction was explicitly raised by the Parties and that it was a legal issue of
“general significance to the Tribunal’s jurisprudence”.

therein. 88 It further emphasized that in prior jurisprudence “no independent

specific direction requirement was applied by the Appeals Chamber to the
facts of any case before it”, but only “substantial contribution as an element
of the actus reus has consistently been required”. 89 After having reviewed
post-World-War II judgments, relevant national legislation and other inter-
national law sources (such as the International Law Commission’s Draft
Code of 1996), the Appeals Chamber further reached the conclusion that
‘specific direction’ was not an essential element of the actus reus of aiding
and abetting in customary international law. 90
In 2015, the Appeals Chamber also quashed the acquittal of Stanišić
and Simatović, the former head and deputy head of the Serbian secret po-
lice, for crimes committed in Bosnia and Croatia. According to the Judg-
ment, the Trial Chamber failed to properly reason its decision regarding the
participation of the accused in a JCE, because it could not analyse their
mens rea without determining the actus reus of JCE, whereas it erred in
law regarding aiding and abetting, that is by considering that specific direc-
tion was an element of its actus reus. 91
Based on the correction of the jurisprudence, the Office of the Prose-
cutor even filed a motion before the Appeals Chamber requesting that it
reconsider its acquittal of Perišić, stating that “the erroneous reversal of Mr.
Perišić’s lawful convictions and 27 year sentence must be corrected to re-
dress the grave injustice caused to the tens of thousands of men, women
and children killed or injured in Sarajevo and Srebrenica and to their fami-
lies”. 92 The motion was, however, denied by an Appeals Chamber panel
presided by Judge Meron.
While Judge Harhoff may have been vindicated in terms of criticiz-
ing specific direction in his Letter, it is rather ironic that he himself seemed
to have endorsed the requirement in the past. Judge Harhoff was part of the
majority in Stanišić and Župljanin, which stated in the Trial judgment that
88
Šainović et al., Appeal Judgement, paras. 1621–1622, see above note 55.
89
Ibid., para. 1625.
90
Ibid., paras. 1627, 1648 (analysis of the cases) and paras. 1649–1650 (conclusion).
91
This is unsurprising, since the three votes in the majority were all judges who formed the
Šainović Appeals Chamber majority (Pocar, LIU, Ramaroson), while one of the judges was
in the Perišić Appeals Chamber majority (Agius).
92
ICTY, Statement of Prosecutor Serge Brammertz in relation to the motion for reconsidera-
tion submitted by the Prosecution in the Perišić case, 3 February 2014 (‘Statement of Prose-
cutor 2014’) (https://www.legal-tools.org/doc/195e1f/).

despite the involvement of the police in the commission of ex-

termination in some instances, there is no evidence that
Stanišić’s acts or omissions were specifically directed to assist,
encourage, or lend moral support to the perpetration of exter-
mination nor was he aware of the perpetrators intent to com-
mit the crime. Therefore, the Trial Chamber finds that Stanišić
is not criminally responsible for aiding and abetting the crime
of extermination. 93
Meron had previously rejected applying the ‘specific direction’
standard to a couple of indicted generals in two appeals cases in 2007 and
2009. 94
25.2.2. The Case of Gotovina and Joint Criminal Enterprise
A further target of criticism in Judge Harhoff’s Letter was the acquittal of
General Ante Gotovina, which is unsurprising since the Appeal Judgment
raises many concerns with its complete overturn of the findings of the Trial
Judgment. The Trial Chamber in Gotovina unanimously held that the high-
est ranks of the Croatian leadership formed a JCE aimed at the permanent
removal of the Serb civilian population from the Krajina region of Croatia
by force or threat of force, which amounted to and involved persecution
(deportation, forcible transfer, unlawful attacks against civilians and civil-
ian objects, and discriminatory and restrictive measures), deportation, and
forcible transfer. 95 The Trial Chamber relied on a series of events to reach
the conclusion on this aim, including transcripts of a meeting of Croatian
leaders at Brioni and the preparation of ‘Operation Storm’; crimes commit-
ted by the Croatian military and police against the remaining Serb civilian
population and property in the aftermath of ‘Operation Storm’; the Croatian
leadership’s policies on the return of Croatian displaced persons and refu-
gees; and discriminatory property laws targeting the Serb minority. 96
The Appeals Chamber, however, overturned the Judgment’s findings
by a three to two majority by zooming in on one of the bases of the Trial
Chamber’s findings, the controversial so-called 200-meters standard. The
Trial Chamber considered any shells falling further away from a legitimate
93
Stanišić and Župljanin, Trial Judgement, para. 786, see above note 53.
94
Burcharth, 2013, see above note 33.
95
ICTY, Prosecutor v Gotovina et al., Trial Chamber, Judgement, 15 April 2011, IT-06-90-T,
paras. 2314–15 (https://www.legal-tools.org/doc/d0d665/).
96
Ibid., paras. 1756–58, 1843-46, 1970-2098, 2304-12.

military target as evidence of an unlawful and indiscriminate attack on the

population of the shelled towns. The Appeals Chamber took advantage of
the unreasoned nature of this standard to counter the finding of the unlaw-
fulness of the artillery attacks and, in turn, considered that without the con-
text of unlawful shelling all other evidence indicating the existence of a
JCE was lacking. 97
For example, the majority there contended that:
discussions of pretexts for artillery attacks, of potential civil-
ian departures, and of provision of exit corridors could be rea-
sonably interpreted as referring to lawful combat operations
and public relations efforts. Other parts of the Brioni Tran-
script, such as Gotovina’s claim that his troops could destroy
the towns of Knin, could be reasonably construed as using
shorthand to describe the military forces stationed in an area,
or intending to demonstrate potential military power in the
context of planning a military operation. 98
In his dissent, Judge Pocar stated that “[i]n light of the Trial Cham-
ber’s careful and detailed review of the minutes of the Brioni Transcript,
these suggestions are simply grotesque”. 99 Considering the limited powers
of review that are set for appeals procedures at the ICTY, by overturning
crucial factual findings the Appeals Chamber essentially declared that ‘no
reasonable trier of fact’ could have found that JCE to exist on the evidence
presented to the Trial Chamber.
Judge Pocar fundamentally dissented from the entire Appeal Judge-
ment, which he claimed “contradicts any sense of justice”. 100 Similar to
Judge Harhoff, he also expressed his suspicions about hidden motives be-
hind the Decision. In his words, “one might wonder what the Majority
wanted to achieve by quashing the mere existence of the JCE rather than
concentrating on Gotovina’s and Markač’s significant contributions to the
JCE. I leave it as an open question”. 101 It would thus appear that here also
Judge Harhoff’s criticism concerned an objectively speaking problematic
judgment, albeit one which cannot be re-examined to prove the legitimacy
of his concerns.
97
Gotovina Appeal Judgment, paras. 91–96, see above note 69.
98
Ibid., para. 93, footnotes omitted.
99
Ibid., Dissenting Opinion of Judge Pocar, para. 26.
100
Ibid., para. 39.
101
Ibid., para. 30.

25.3. Punishment for Questioning the Court’s Independence?

The impartiality of a court is intrinsically linked to its independence. Both
external and internal independence are necessary for each judge to operate
completely impartially. 102 In other words, there needs to be judicial inde-
pendence both from any political interference by any government, inter-
governmental organization, or other external stakeholder, as well as from
internal influences of actors within the Court, such as other judges, the
Registrar, Prosecutor, or Defence. 103 Both aspects of judicial independence
were put into question by Judge Harhoff’s Letter. In fact, the implication
was that external pressure might have been behind the internal pressure put
on fellow judges by the President of the Tribunal. 104 Commenting on the
Letter, the Chatham House Milestones in International Criminal Justice
noted that it raised many questions, including whether the allegations were
true. 105 It, however, continued that
an issue that was more immediately problematic was the alle-
gation of judicial misconduct. For a judge to publicly defame
his fellow judges in this manner and bring the ICTY into dis-
repute, has been said to raise doubts over his fitness for judi-
cial office and his position as an ICTY judge. 106
This hierarchy of priorities is rather odd and may reflect the real rea-
sons behind the dismissal of Judge Harhoff under the guise of ‘bias’. We
mention in this connection a statement by Kevin Jon Heller, who called the
court’s Decision to remove Judge Harhoff “absolutely the right decision”,
since accusing the president of a tribunal of being a puppet of the Israeli
and the US governments without offering any kind of evidence was, ac-
cording to him, fundamentally unethical, appalling, widely speculative, and
implausible. 107
102
Steven Freeland, “Judicial Decision-Making in International Criminal Courts: “Effective”
Justice?”, in Griffith Journal of Law and Human Dignity, 2015, vol. 3, no. 1, p. 71.
103
Ibid.
104
Ibid.
105
John R.W.D. Jones et al., Milestones in International Criminal Justice: Recent Legal Con-
troversies at the UN Yugoslav Tribunal, Chatham House, London, 2013.
106
Ibid.
107
Marie Dhumieres, “Judge Thrown off Yugoslavia War Crimes Tribunal for Criticising
Change of Direction in Verdicts”, The Independent, 24 September 2013 (available on its web
site).

Regardless of how ethical or unethical one may find Judge Harhoff’s

speculations, they could hardly provide a legal basis for a finding of bias
against any particular accused. It is no surprise that in its Decision, the
Special Chamber did not refer to these speculations at all. Even Judge Har-
hoff’s ‘professional and moral dilemma’ was interpreted as having nothing
to do with a fear of outside influence, despite his memorandum specifically
explaining it to be just that. 108 Our personal impression is therefore that the
Decision may have been nothing more than a masked ‘punishment’ for an
action for which no sanction is actually proscribed, namely the violation of
an informal ‘code of silence’ that prohibits criticizing other judges in public.
Since it was not actually prohibited behaviour, Judge Harhoff’s Let-
ter has prompted calls for a code of conduct – interestingly, coming from
defence counsel – which would prohibit such statements in the future. 109
Judge Harhoff himself expressed the view that judges should refrain from
criticizing colleagues and their rulings in public. 110 Yet he added a caveat:
“Unless you talk to them first, that is. But all previous attempts to raise de-
bate within the Tribunal about the change in our jurisprudence had been
soundly rejected by President Meron”. 111 He claimed that several other
judges 112 had called for an internal debate of the ‘specific direction’ stand-
ard, but the idea was “categorically rejected by President Meron”. Thus,
Judge Harhoff felt it would be futile for him to raise the question within the
court. 113
While such a stance is understandable, it still remains a mystery why
he did not voice his concerns also in the form of a separate opinion, which
would have been far less controversial, in the case of Mićo Stanišić and
Stojan Župljanin, where he was part of the majority in the Trial Chamber
endorsing the specific direction standard. 114
108
Harhoff, Memorandum, see above note 11.
109
Colleen Rohan and Gregor Guy-Smith, “Comment on Judge Harhoff’s Letter”, 19 June
2013, International Criminal Law Bureau.
110
Burcharth, 2013, see above note 33.
111
Ibid.
112
It has also been claimed elsewhere that several fellow judges endorsed Harhoff’s objections,
but preferred to remain anonymous, see Martin Burcharth, “Fellow Judges support ousted
colleague’s criticism of Hague Tribunal”, Information, 6 December 2013 (available on its
web site).
113
Ibid.
114
Stanišić and Župljanin, Trial Judgement, para. 786, see above note 53.

25.3.1. Claims of Pressure Exerted on Fellow Judges

Judge Harhoff’s claims of internal pressure being exerted were confirmed
by a number of senior officials at the Court, albeit anonymously in an arti-
cle published by the New York Times. 115 They claimed judges had been per-
turbed by pressures from Meron to deliver judgments before they were
ready and that he was furthermore shutting down debate in the panels on
the decisions to be taken. 116 If these allegations were true, Meron was dis-
regarding an element of deliberations that ensures impartiality, which he
himself invokes in an article on judicial independence at the ICTY, where
he describes how judges “discuss the case among themselves prior to
agreeing on a decision, and this discussion helps to correct any latent biases,
because a judge is confronted with, and has to respond to, logical argu-
ments of his colleagues”. 117
It has been argued that Meron did not pressure colleagues to achieve
particular rulings, but rather to implement the ICTY Completion Strategy.
In 2003, Wikileaks documents revealed that Meron was considered by the
US ambassador as the tribunal’s pre-eminent supporter of the US govern-
ment’s efforts in terms of the Completion Strategy. 118 While internal pres-
sure seems to have actually taken place, for one reason or another, such
pressure may be nothing more than a natural occurrence of courts and tri-
bunals.
The more controversial issue was the question of potential external
pressure. Judge Harhoff’s speculations regarding this issue were just that,
and in the specific context in which they were raised may or may not have
been warranted. However, it would be “incredibly naïve to think that judg-
115
Simons, 2013, see above note 56.
116
Ibid.:
After the only session to deliberate the acquittal that Judge Meron had drafted in the
case of the two Croatian generals, one official said, the judge abruptly declined a request
by two dissenting judges for further debate […] In his letter, Judge Harhoff also said
Judge Michele Picard of France was recently given only four days to write her dissent
against the majority decision to acquit two Serbian police chiefs, Jovica Stanišić and
Franko Simatović. ‘She was very taken aback by the acquittal and deeply upset about
the fast way it had to be handled,’ said an official close to the case.
117
Theodor Meron, “Judicial Independence and Impartiality in International Criminal Tribu-
nals”, in The American Journal of International Law, 2005, vol. 99, no. 2, p. 361.
118
WikiLeaks, “ICTY: Ambassador Prosper’s Meetings with ICTY President and Registrar”, 7
November 2003.

es are not influenced by considerations of policy or even pure politics”. 119

Milanović reminds us that “the specific direction business in Perišić was
clearly motivated by the desire to delineate between culpable and non-
culpable remote complicity in international crimes”, no doubt considering
the implications for current and future conflicts and the potentially associ-
ated trials. 120
In their briefs, Perišić’s lawyers openly took as a parallel to the situa-
tion which was at hand, the so-called ‘humanitarian intervention’ in Libya,
and claimed that, without applying the ‘specific direction’ standard, “assis-
tance given to a party of a conflict in the knowledge that crimes are likely
to be committed by that party will result in a finding of guilt irrespective of
the humanitarian intent or impact of that assistance”. 121 They characterized
the intervention in Libya by the UK, France, US and Canada, among others,
as support given to a ‘rights-based’ uprising against the ‘regime’ of
Muammar Gaddafi under the Responsibility to Protect doctrine in response
to widespread reports of serious violations of international humanitarian
and human rights law committed by ‘Gaddafi’s forces’. 122 Yet, at the same
time, Perišić’s lawyers implied that the ‘bigger picture’ should have been
enough reason for those providing assistance to the irregular non-state
armed groups with knowledge of the potential for that assistance to aid in
some way in the commission of crimes and such crimes being subsequently
committed, to not be subject to criminal sanction for aiding and abetting. 123
To consider the commission of crimes as acceptable in the pursuit of
the presumed greater good is a dangerous slippery slope. As Stewart posits:
“Should we suddenly redefine torture to accommodate practices that are
now ubiquitous in the war on terror?”. 124 Moreover, such regime change
interventions have not aged well, not in Libya, nor elsewhere, and their
humanitarianism is far from clear and should not be presumed.
119
Marko Milanović, “Danish Judge Blasts ICTY President”, EJIL: Talk!, 13 June 2013, com-
ments section (available on its web site).
120
Ibid.
121
ICTY, Prosecutor v. Perišić, Public Redacted Version of the Appeal Brief of Momčilo
Perišić, 10 April 2012, IT-04-81-A, paras. 20–21 (‘Perišić Appeal Brief’) (https://
www.legal-tools.org/doc/b20df0/).
122
Ibid., para. 25.
123
124
James G. Stewart, “The ICTY Loses its Way on Complicity – Part 2”, Opinio Juris, 3 April
2013 (available on its web site).

The defence brief in Perišić further stated: “The facts surrounding

the Libyan conflict are far from unique. It is foreseeable that the interna-
tional community will be called upon to make similar decisions in the fu-
ture in non-international armed conflicts such as Syria”. 125 In fact, the in-
ternational community was not called upon, not in Syria, not in the case of
other regime change interventions, yet several States nevertheless provided
support to so-called ‘moderate rebels’ at great expense to the Syrian popu-
lation when aid landed in the hands of terrorists.
At the hearing in Šainović, the Prosecution noted that a ‘remote’ aid-
er and abettor might even be able to provide more effective assistance than
a ‘proximate’ aider and abettor, and have more extensive knowledge of the
circumstances of the crimes, especially if he/she is a high-ranking official
of an army involved in a conflict. 126 Considering the vast intelligence pos-
sessed by Western countries which involve themselves in regime-change
interventions, at least the knowledge that the assistance will substantially
contribute to the commission of crimes will usually be present, if not out-
right intent to provide such substantial contribution. To assume that such
support could never be beyond the pale, and that it does not deserve to be
scrutinized against the same rigorous standards at international criminal
tribunals as the support given from ‘up-close’, is a position that reflects the
dogmatic belief in the good of the West and its infallibility in foreign policy.
Where judges hold such naïve beliefs, no further external pressure is neces-
sary.
However, here again, we enter the world of speculation since the ex-
amples of Syria or Libya were not actually mentioned in the Perišić Appeal
Judgment and we do not know how the judges took them into account, if at
all. There was, nonetheless, undoubtedly a shift in the Tribunal towards
protecting the interests of the military. As William Schabas stated at the
time: “A decade ago, there was a very strong humanitarian message com-
ing out of the tribunal, very concerned with the protection of civilians. It
was not concerned with the prerogatives of the military and the police. This
message has now been weakened; there is less protection for civilians and
human rights”. 127
125
Perišić Appeal Brief, para. 30, see above note 121.
126
Prosecutor v. Šainović et al., Appeals Chamber, Transcript, 13 March 2013, para. 454. For
the whole rejection of the specific direction requirement by the Office of the Prosecutor, see
paras. 440–461.
127
Simons, 2013, see above note 56.

In the words of Dag Hammarskjöld, whose name has become synon-

ymous with the integrity of an international civil servant, a person in such a
role must remain wholly uninfluenced not merely by national but also
group interests or ideologies. 128 Thus, regardless of whether Judge Har-
hoff’s speculations about direct outside pressure were a reflection of the
reality or not, the concern for military interests and the protection of an in-
terventionist ideology over justice puts into question the legitimacy of the
decisions criticized by Judge Harhoff and those pushing for them. Against
this background, the fact that he voiced his concerns about what he saw as
a grave issue in terms of the court’s impartiality can be understood as
speaking in favour of his moral character and integrity and not vice versa.
Richard Dicker, the Human Rights Watch International Justice Pro-
gram Director, commented that Judge Harhoff’s e-mail raised a legitimate
question, especially concerning the acquittals of Perišić and Stanišić and
Simatović, which created a very dangerous and undermining precedent of
immunizing senior officials when they are not present at the scene of the
crimes, while reminding that they are usually ‘smart enough’ not to put
their criminal instructions into writing. 129 In the words of Hammarskjöld,
if integrity in the sense of respect for law and respect for truth
were to drive [an international civil servant] into positions of
conflict with this or that interest, then that conflict is a sign of
his neutrality and not of his failure to observe neutrality – [in
other words] it is in line, not in conflict with his duties as an
international civil servant. 130
The judgments considered in Judge Harhoff’s Letter had important
implications not only for the immediate victims of the crimes under con-
sideration, but also the narratives of ‘guilt’ and ‘innocence’ of the main na-
tions involved in the conflict – no small matter in terms of achieving justice
or reconciliation in the affected communities. For example, with regard to
Gotovina, Milanović noted that the acquittal of the individuals on trial may
have been the correct decision, but the dismissal of the views of the Trial
Chamber on so many issues and particularly the existence of any JCE (with
or without the two accused) served to harden the conflicting nationalist nar-
128
Jacques Lemoine, The International Civil Servant: An Endangered Species, Kluwer Law
International, 1995, p. 45, citing Dag Hammarskjöld, The International Civil Servant in Law
and in Fact, Oxford University Press, 1961.
129
Dhumieres, 2013, see above note 107.
130
Lemoine, 1995, p. 46, see above note 128.

ratives in Croatia and Serbia, of which the ‘victorious’ brand is even more
poisonous and harder to cure. 131 Similarly, Nakarada observed that with
this judgment, the Croatian government was proclaimed innocent, and the
victims were humiliated. 132 This and the subsequent dropping of the charg-
es against the Albanian leader of the Kosovo Liberation Army, Ramush Ha-
radinaj, made even those Serbs who were previously supportive of the IC-
TY as an institution of justice now believe that it was highly biased, that is
treating victims unequally depending on their ethnic origin. 133 In terms of
Perišić, who was the top figure within the Yugoslav Army, his conviction in
2011 was immensely significant for Bosniaks, 134 while Stanišić was the
first intelligence chief of a country to be judged by an international crimi-
nal tribunal. As Orentlicher noted, even if Judge Harhoff’s speculations
about external influence were just that – speculations – in the eyes of many
Bosnians “it was the proverbial smoking gun”. 135
Keil and Perry describe how the expectations from the Tribunal have
been exceptionally high in terms of fighting impunity:
However after the acquittals in the cases of Gotovina et al.,
Haradinaj et al. and Perišić as well as the Stanišić and Sima-
tović first instance verdicts, the standing of the Tribunal
among victims in BiH is likely to be less favourable, judging
by the reactions of victim associations and discussions in the
media. 136
Fifteen victims’ associations from BiH called for the resignation of
Meron, yet their call was simply ignored. According to media reports, after
five weeks of silence, the President of the Association of Mothers of the
131
Marko Milanović, “The Gotovina Omnishambles”, EJIL: Talk!, 18 November 2012 (availa-
ble on its web site).
132
Radmila Nakarada, “Acquittal of Gotovina and Markač: A Blow to the Serbian and Croatian
Reconciliation Process”, in Utrecht Journal of International and European Law, 2013, vol.
29, no. 76, pp. 102–105.
133
Ibid.
134
Anton Vukpalaj, “Acquittals at the International Criminal Tribunal for the former Yugoslavia
(ICTY) in 2012-2013: the domestic implications”, in Studies of Transition States and Socie-
ties, vol. 10, no. 1, 2018, p. 8, citing D. Karabegović and O. Zorić, “Bosnian Consternation
at Serbian Security Officers IWPR”, in Institute for War and Peace Reporting, 2013.
135
Diane Orentlicher, Some Kind of Justice: The ICTY’s Impact in Bosnia and Serbia, Oxford
University Press, 2018, p. 186.
136
Soeren Keil and Valery Perry (eds.), State-Building and Democratization in Bosnia and
Herzegovina, Southeast European Studies, 2015, p. 153.

Srebrenica and Žepa Enclaves, Munira Subašić, and Murat Tahirović, Pres-
ident of the Organization of Victims and Witnesses of Genocide, came to
The Hague “to talk to the Tribunal’s officials and get some answers”. 137
Although they were received by Meron himself, 138 he refused to allow
them a further meeting with other judges. Instead, he suggested that they
write a letter to him specifying what they wanted to ask them, and then he
would talk to them – a proposal Subašić found useless considering how he
ignored their first letter. Generally, Subašić had little positive to say about
Meron on this particular occasion, characterizing him as “a very cunning
man – cunning as a man; cunning as a politician”, and claiming he was
holding monopoly power over the court, filling bottomless barrels, and tell-
ing tales for kids to the victims. 139 On the other hand, Tahirović stated that
the victims’ representatives would leave The Hague with a strong impres-
sion that there “is a clear conflict and disagreement” among the judges. 140
The victims’ associations had also written to the UN Secretary-
General Ban Ki Moon asking him to establish an independent commission
to investigate the allegations made in the Letter sent by Judge Harhoff, and
to see if the Tribunal had really ‘changed its course’ under the pressure of
‘military establishments’ of some influential countries, yet they never re-
ceived a response. It is important to note, that the acquittals, also driven by
Meron, which have granted the release of several genocide convicts at the
ICTR, have similarly caused shock in the affected communities and raised
calls for reviews, which were likewise ignored. IBUKA, the genocide sur-
vivors’ umbrella organization in Rwanda, has repeatedly called for an ur-
gent investigation of all the controversial decisions, which it said have only
served to benefit genocide perpetrators. In one of its protest letters to the
UN, it stated:
The international community failed Rwandans during the
Genocide against the Tutsi yet it had its mission present in the
country, today there’s an attempt, through international justice,
137
“Instead of Resignation, Meron Offers Victims ‘New Chapter’”, Sense Agency, 26 July 2013
(available on its web site) (‘Sense Agency’).
138
As well as the Tribunal’s Registrar John Hocking and Chief Prosecutor Serge Brammertz.
139
Govori priče za djecu, puni sode bez dna, TV Tribunal 596, video, 27 July 2013 (on file with
the authors).
140
Sense Agency, see above note 137.

to minimize the gravity of the genocide by releasing its top ar-

chitects. 141
25.4. Conclusion
As Lemoine noted, “[t]here can be no impartiality without independence
from outside influence and notably from governments, including, and per-
haps primarily, from one’s own”. 142 Speaking from his own experience,
Meron himself acknowledged the existence of governmental influence on
international judges by arguing for life-long appointments in order to offset
it. 143 Whether justified or not, imagined or real, suspicions of outside influ-
ence should be taken seriously when raised in an honest manner at such
high levels within an international tribunal.
The fact that both at the ICTY and the ICTR, calls for investigations
fell on deaf ears is a failure of the system to ensure impartiality. Further-
more, if there was, in fact, no direct outside influence that dictated the nu-
merous acquittals, raising open-ended questions such as the ones posed by
Judge Harhoff or Judge Pocar should not be considered something to fear,
prohibit or punish, but rather an opportunity to elaborate clearly on why
such perceptions are erroneous. Certainly, their suspicions were not merely
felt by them, but rather by numerous people affected by or having
knowledge of the relevant conflicts; thus, an open discussion would have
been invaluable.
The Appeals Chamber in Čelebići stated that “justice should not only
be done, but should manifestly and undoubtedly be seen to be done” 144 and
is founded on the need to ensure public confidence in the judiciary. 145 As
the Office of the Prosecutor rightly noted: “To preserve its positive reputa-
141
“Judge Who Freed 10 Genocide Convicts Seeks New UN Contract”, KT Press, 29 January
2018 (available on its web site).
142
Lemoine, 1995, p. 43, see above note 128.
143
Meron, 2005, see above note 117.
144
Furundžija Appeal Judgement, para. 195, see above note 52. See International Criminal
Tribunal for Rwanda (‘ICTR’), Prosecutor v. Seromba, The Bureau, Decision on Motion for
Disqualification of Judges, 25 April 2006, ICTR-2001-66-T, para. 9 (with references cited
therein) (https://www.legal-tools.org/doc/9d6128/).
145
Čelebići Appeal Judgement, para. 707, see above note 52; ICTR, Prosecutor v. Karemera et
al., Trial Chamber, Decision on Joseph Nzirorera’s Motion for Disqualification of Judge By-
ron and Stay of the Proceedings, 20 February 2009, ICTR-98-44-T, para. 6 (https://
www.legal-tools.org/doc/f27eb3/); Stanišić and Župljanin Appeal Judgement, para. 43, see
above note 42.

tion moving forward, the Tribunal must make allowance for valid criticism.
It must use the constructive aspects of the debate generated as a spring-
board for strengthening its processes”. 146 Instead, the Tribunal chose to
simply get rid of Judge Harhoff, “to wash away the stain that [his] email
had put on the court”. 147 One could argue that this reaction was the stain
itself, sending a signal to the public as well as other judges and insiders that
any criticism, whistleblowing or questioning would be severely punished
instead of being met with a response of self-reflection by the institution.
On a positive note, as the Office of the Prosecutor has noted, the
Court and its Appeals Chamber “demonstrated its independence, impartiali-
ty and capacity for critical reflection, strengthening the international justice
system and the rule-of-law” in overturning the Perišić Appeal Judgement’s
flawed holding. 148
146
Statement of Serge Brammertz, see above note 84.
147
Burcharth, see above note 33.
148
Statement of Prosecutor 2014, see above note 92.

26
______
Integrity in
International Criminal Law:
Post-Conviction Proceedings
Gregory S. Gordon *
By establishing the Mechanism, the Council has helped to

guarantee that the closure of the two pioneering ad hoc tribu-
nals does not open the way for impunity to reign once more.
MICT President Theodor Meron 1
26.1. Introduction
On 14 December 2016, based on a decision by the President of the United
Nations International Residual Mechanism for Criminal Tribunals
(‘MICT’), convicted Rwandan genocidaire Ferdinand Nahimana was
granted early release. 2 Nahimana, referred to by some as the ‘Rwandan
Goebbels’, is considered the propaganda master of the Rwandan Geno-
*
Gregory S. Gordon is Professor and formerly served as Associate Dean (Develop-
ment/External Affairs) and Director of the Ph.D.–M.Phil. Programme at the Faculty of Law,
The Chinese University of Hong Kong. Before joining the legal academy, he served as a
prosecutor with the United States Department of Justice and the International Criminal Tri-
bunal for Rwanda. Professor Gordon is also a Research Fellow at the Centre for Internation-
al Law Research and Policy (CILRAP). In 2017, his book Atrocity Speech Law: Foundation,
Fragmentation, Fruition (Oxford University Press), which coined a new term for the law re-
lated to hate speech in international criminal law, proposed a paradigm shift in the field with
introduction of the “Unified Liability Theory for Atrocity Speech Law”. The author would
like to thank Jan Stone for her outstanding research assistance on this project.
1
Theodor Meron, Speech before the UN Security Council, 7 June 2012, in United Nations
International Residual Mechanism for Criminal Tribunals (‘MICT’), “About” (available on
its web site).
2
MICT, The Prosecutor v. Nahimana, Public Redacted Version of the 22 September 2016
Decision of the President on the Early Release of Ferdinand Nahimana, 5 December 2016,
MICT-13-37-ES.I, para. 35 (‘Nahimana Early Release Decision’) (https://legal-tools.org/
doc/1l5p1y); Firouzeh Mitchell, “Early Release for Two ICTR Convicts, Possible War
Crimes in Aleppo, and Amnesty Law in Colombia”, ICL Media Review, 15 December 2016

cide. 3 His December 2003 conviction and 30-year sentence by the Interna-
tional Criminal Tribunal for Rwanda (‘ICTR’) on various hate speech-
related genocide and crimes against humanity charges was grounded in his
founding/guiding the operations of Radio Télévision Libre des Milles Col-
lines (‘RTLM’). 4 Also referred to as ‘Radio Machete’, RTLM urged Rwan-
dan Hutus to slaughter Tutsis over the airwaves, helping fuel a genocide
against the country’s ethnic minority in 1994, during which close to
800,000 victims perished in approximately three months. 5
From a superficial perspective, without studying the defendant’s
background too closely, the release decision raises no red flags. Nahimana
had hit the two-thirds mark of his 30-year sentence and a MICT practice
had developed allowing ad hoc tribunal convicts with good behaviour to be
set free after serving two-thirds of their sentences. 6
Yet, closer scrutiny raises troubling issues of integrity. The early re-
lease decision was made by Judge Theodor Meron, who had sat in judge-
ment of Nahimana during the merits phase of the proceedings against the
RTLM founder. 7 At that juncture, Meron took issue with the basis of Na-
himana’s liability and dissented on the grounds that the sentence was too
harsh. 8 Meron had disagreed with the other judges on his panel, finding
that Nahimana’s liability connected to hate speech was illegitimate in light
of freedom of expression concerns explicitly grounded in the zealous free
speech bent of US First Amendment jurisprudence. 9 Further, that appellate
3
Vincent Gasana, “When a Judge Undermines the Legacy of International Justice”, The New
Times, 4 June 2018 (available on its web site).
4
“Journalists Jailed for Inciting Rwandan Genocide”, The Guardian, 4 December 2003
5
Sharon Lafraniere, “Court Finds Rwanda Media Executives Guilty of Genocide”, The New
York Times, 3 December 2003 (available on its web site).
6
Barbara Hola, “Early Release of ICTR Convicts: The Practice Beyond the Outrage”, Jus-
ticeInfo.Net, 5 July 2019 (available on its web site).
7
James Karuhanga, “Government, Survivors Raise Concern over UN’s Early Release of
Genocide Convicts”, The New Times, 16 December 2016 (available on its web site).
8
International Criminal Tribunal for Rwanda (‘ICTR’), Prosecutor v. Ferdinand Nahimana et
al., Appeals Chamber, Judgement, 28 November 2007, ICTR-99-52-A (‘Nahimana Case
Appeals Judgement’), Partially Dissenting Opinion of Judge Theodor Meron, para. 22
(http://www.legal-tools.org/doc/4ad5eb/); Gregory S. Gordon, Atrocity Speech Law: Foun-
dation, Fragmentation, Fruition, Oxford University Press, Oxford, 2017, pp. 235–236.
9
Ibid., pp. 235–236. (A previous chapter by the author on this case focused on the national
power politics underlying and surrounding the Nahimana Early Release Decision: “On the
Early Release of the “Rwandan Goebbels”: American Free Speech Exceptionalism and the

26. Integrity in International Criminal Law: Post-Conviction Proceedings
panel had reduced Nahimana’s sentence from life to 30 years. 10 As a

member of that panel who had advocated for a lighter penalty, Meron logi-
cally played a role in Nahimana’s even being in a position to request re-
lease at such an early juncture.
Thus, Meron subsequently sitting as the lone decision-maker on Na-
himana’s application for early release taints the procedure with the stain of
bias and/or lack of impartiality. Not surprisingly, as we will see below, oth-
er jurisdictions, with both common and civil law moorings, frown upon
such adjudicatory double-dipping and prohibit it.
In light of Meron’s compromised position, one would have expected,
at the very least, that the decision be made pursuant to a full and fair brief-
ing and hearing procedure respecting due process protections. However,
that was not the case. As already indicated, it was a unilateral decision. 11
There was no hearing. And, with no hearing, there was no input in open
court from victims, prosecutors, UN or government officials or non-
governmental organizations. 12 Furthermore, Meron’s written decision was
heavily redacted. This raises other serious integrity issues regarding trans-
parency and procedural coherency, which this chapter will also explore.
The chapter proceeds in five parts. After this introduction, Section
26.2. examines the case of The Prosecutor v. Ferdinand Nahimana et al.
and the involvement of Judge Theodor Meron during the merits phase of
that proceeding. It then reviews Meron’s presiding over Nahimana’s early
release application before the MICT. Next, Section 26.3. considers the rules
on early release and Judge Meron’s decision in respect of Nahimana’s ap-
plication. In light of the troubling ethical and due process issues raised by
this decision, Section 26.4. examines the relevant law on judicial bias and
disqualification at the MICT, at international criminal judicial institutions
in general and in domestic jurisdictions. Based on this, Section 26.5. makes
Ghost of the Nuremberg–Tokyo Commutations”, in Morten Bergsmo, Mark Klamberg,

Kjersti Lohne and Christopher B. Mahony (eds.), Power in International Criminal Justice,
Torkel Opsahl Academic EPublisher, Brussels, 2020. While there is some overlap, the cur-
rent chapter views the case strictly from a deontological and/or professional responsibility
perspective consistent with this volume’s focus on the theme of “Integrity in International
Justice”.)
10
Ibid., p. 410. Nahimana Case Appeals Judgement, para. 1052, see above note 8.
11
Linda Melvern, “Early Release of Genocide Criminals One More Betrayal”, The New Times,
21 April 2017 (available on its web site).
12
Ibid.

recommendations for the MICT in terms of reforming early-release appli-

cation procedures as well as adding or strengthening judicial integrity pro-
visions that will ensure greater fairness, transparency and due process in
future post-conviction proceedings.
26.2. Proceedings at the ICTR
26.2.1. The Prosecutor v. Nahimana: Background
Formerly a Belgian colony, Rwanda’s first steps toward independence in
1959 were accompanied by majority Hutus committing widespread and
horrific atrocities against minority Tutsis. 13 The mass killings and violence
were motivated by Hutu resentment of Tutsis, who had been placed in
power and favoured during Belgian rule, which finally ended in 1962. The
violence created a Central and East African Tutsi diaspora from which a
Ugandan group, the Rwandan Patriotic Front (‘RPF’) launched a 1990
military invasion into the mother country. 14 Owing to an enfeebled econo-
my and international pressure, Rwandan President Juvénal Habyarimana
participated in UN-sponsored negotiations that culminated in the so-called
Arusha Peace Accords. The latter stipulated the formation of a transitional
government that included RPF participation. 15
Habyarimana’s governing clique included hard-line Hutus who bris-
tled at the idea of power-sharing and began to use the media to attack the
accords, the international community, and, most vituperatively, the Tutsis
themselves. 16 And they began to draw up a plan for Tutsi genocide. The
intellectual darling of this extremist cadre, known as the ‘Akazu’, was
Rwandan history professor Ferdinand Nahimana. 17 After a successful ca-
reer as an academic, Nahimana was appointed by Habyarimana as the di-
rector of ORINFOR, the Rwandan government’s public communications
apparatus. Part of ORINFOR’s portfolio included the official national radio
station, known as Radio Rwanda.
13
“Rwanda: How the Genocide Happened”, BBC News, 17 May 2011 (available on its web
site).
14
Ibid.
15
Ibid.
16
Chris McGreal, “Rwanda’s Himmler: The Man Behind the Genocide”, The Guardian, 18
December 2008 (available on its web site).
17
Godfrey Mwakikagile, Civil Wars in Rwanda and Burundi: Conflict Resolution in Africa,
New Africa Press, Pretoria, 2013, p. 269.

During his tenure there, in what some have referred to as a ‘dress re-
hearsal’ for the Rwandan Genocide, 18 Nahimana had Radio Rwanda broad-
cast a knowingly fabricated ‘news bulletin’ informing listeners that the Tut-
sis had compiled a list of Hutu targets to be murdered in Bugesera (a Tutsi
district in Eastern Province, Rwanda). 19 Radio Rwanda aired this fudged
‘news’ to extremist Hutu Interahamwe militias and members of the Presi-
dential Guard, who were synchronously being transported to that locale. 20
Nahimana’s voice soon came on the same airwaves and implored listeners
to “[a]nnihilate these Machiavellian plans of the enemy Inyenzi-
Inkotanyi”. 21 He then referred to the Tutsis as ‘cockroaches’ (inyenzi) and
warned that they were “preparing to overthrow the country”. 22 Enraged by
the broadcast and then deposited at the doorstep of an exclusive Tutsi en-
clave, these heavily armed militia, arriving in Bugesera by the truckload,
slaughtered scores of innocent civilians. 23
Most of Rwanda, and the international community at large, were in
an uproar over this orchestrated butchery. Bowing to the attendant pressure,
President Habyarimana fired Nahimana from his ORINFOR post. 24 Having
been sacked from his government position as head of communications, Na-
himana turned to the private sector to find a comparable position.
And this coincided with the extremist Hutus drawing up the burgeon-
ing template for a Tutsi genocide. In particular, as part of the mounting hate
speech campaign against the Tutsis, in July 1993, Nahimana spearheaded
the establishment of RTLM. 25 In the hate language it disseminated over the
airwaves, Nahimana’s station attempted to dehumanize the Tutsis by,
among other things, referring to them as ‘inyenzi’ (cockroaches) and using
other dehumanizing metaphors. 26 Additionally, it called for violence
18
Gordon, 2017, pp. 51–52, see above note 8.
19
Aimable Twagilimana, Historical Dictionary of Rwanda, Rowman & Littlefield, London,
2007, p. 123.
20
Linda Melvern, Conspiracy to Murder: The Rwandan Genocide, Verso, London, 2006,
pp. 26–28.
21
Dina Temple-Raston, Justice on the Grass: Three Rwandan Journalists, Their Trial for War
Crimes, and a Nation’s Quest for Redemption, Free Press, New York, 2005, pp. 27–28.
22
Ibid., p. 28.
23
Ibid., p. 27.
24
Ibid., p. 29.
25
Jolyon Mitchell, “Remembering the Rwandan Genocide: Reconsidering the Role of Local
and Global Media”, in Global Media Journal, 2007, vol. 6, no. 11, p. 3.
26
Ibid., p. 4.

against certain Tutsi individuals. 27 Pre-genocide, Nahimana had responsi-

bility for hiring broadcasters and shaping RTLM’s content. Monitoring the
violence being spurred by RTLM’s broadcasts, the Rwandan government
convened meetings with Nahimana and other RTLM managers and warned
them that the anti-Tutsi inflammatory broadcasts needed to end. 28 Nonethe-
less, they did not.
Once the genocide began on 6 April 1994, RLM’s content became
even more inflammatory and played a significant role in fuelling the blood-
shed that claimed the lives of approximately 800,000 innocent civilian Tut-
sis and non-conforming Hutus in less than three months. 29 Nahimana
claimed to have had no control over RTLM after 6 April 1994, testifying at
his trial that he had taken refuge at the French embassy and was then evac-
uated by French troops to Bujumbura, Burundi. 30 Yet, the record estab-
lished by other evidence at the trial was to the contrary. This included Na-
himana’s visiting the RTLM station during the genocide, media interviews
where he indicated a management role in the radio station, suggesting to
witnesses that he approved of the RTLM broadcasts, and being spotted in
the company of another RTLM manager at the Ministry of Defence. 31 And,
most damning of all, trial evidence established that, during the genocide, at
the request of a French official, Nahimana ordered RTLM announcers to
halt the broadcast of certain incendiary content, after which such broad-
casts ceased. 32
26.2.2. The Trial Chamber Proceedings
After Cameroon arrested Nahimana in March 1997 and surrendered him to
the ICTR, the latter charged him with: (1) conspiracy to commit genocide;
(2) instigation to genocide (advocacy for genocide when the crime is com-
mitted and the advocacy made a substantial contribution); (3) direct and
27
Gordon, 2017, p. 53, see above note 8.
28
ICTR, Prosecutor v. Ferdinand Nahimana et al., Trial Chamber, Judgment and Sentence, 3
December 2003, ICTR-99-52-T, paras. 571–607 (‘Nahimana Case Trial Judgement’)
(http://www.legal-tools.org/doc/45b8b6/).
29
Frank Chalk, “Hate Radio in Rwanda”, in Howard Adelman and Astri Suhrke (eds.), The
Path of a Genocide: The Rwanda Crisis from Uganda to Zaire, Routledge, London, 2017,
p. 97 (noting that RTLM played an important role as an inciter and co-ordinator of the
Rwandan Genocide).
30
Gordon, 2017, p. 151, see above note 8.
31
Ibid., pp. 151–152.
32
Ibid., p. 152. Nahimana Case Trial Judgement, para. 563, see above note 28

public incitement to commit genocide (advocacy not necessarily leading to

commission, that is, an inchoate crime); (4) complicity in genocide; and (5)
crimes against humanity (persecution and extermination). 33 Within Article
6 of the Statute (Individual Criminal Responsibility), these charges against
Nahimana were pursuant to subsection (1), that is, direct commission, but
also pursuant to subsection (3), superior responsibility, in respect of direct
and public incitement to commit genocide and crimes against humanity
(persecution). In other words, superior responsibility was not charged as a
mode of liability for the other crimes. 34
In December 2003, after 230 trial days, and pursuant to Article 6(1),
the ICTR found Nahimana guilty of genocide, direct and public incitement
to commit genocide, conspiracy to commit genocide, and crimes against
humanity (extermination and persecution). It also found him guilty of in-
citement and persecution pursuant to Article 6(3) (superior responsibility).
In sentencing him to life in prison, Judge Navanethem Pillay observed:
As the mastermind of RTLM, Nahimana set in motion the
communications weaponry that fought the “war of media,
words, newspapers and radio stations” he described in his Ra-
dio Rwanda broadcast of 25 April as a complement to bullets.
Nahimana also expressed his intent through RTLM, where the
words broadcast were intended to kill on the basis of ethnicity,
and that is what they did. 35
26.2.3. The Appeals Chamber Proceedings

In April 2004, Nahimana (along with his co-defendants) filed a notice of
appeal and was assigned the following Appeals Chamber panel: (1) Judge
Fausto Pocar, presiding (Italy); (2) Judge Mohamed Shahabuddeen (Guy-
ana) ; (3) Judge Mehmet Güney (Turkey); (4) Judge Andrésia Vaz (Sene-
gal); and (5) Judge Theodor Meron (United States). 36
33
Ibid., para. 8.
34
Ibid. Jean-Bosco Barayagwiza, another RTLM founder/director, was arrested in the same
raid and charged with the same crimes although supplemented in reference to his leadership
of a Hutu extremist political party (Coalition pour la Défense de la République or CDR) –
thus, CAH-murder was included in his indictment. Ibid., para. 14. Another Hutu extremist
journalist, Hassan Ngeze, editor-in-chief of the radically anti-Tutsi newspaper Kangura, was
arrested in Kenya in 1997, charged with similar crimes and tried with Nahimana and
Barayagwiza. Ibid., para. 19.
35
Ibid., para. 966.
36
Nahimana Case Appeals Judgement, see above note 8.

Subsequently, Nahimana’s appellate brief challenged three key as-

pects of the Trial Chamber’s decision: (1) it contested all of the interlocuto-
ry decisions rendered on issues relating to the validity of the proceedings;
(2) it claimed errors of law and fact related to fair trial protections; and (3)
it pointed to errors of law and fact in connection with the merits decision. 37
As a threshold matter, the panel rejected Nahimana’s arguments regarding
the validity and fair trial violations.
Further, the main grounds for conviction against Nahimana on the
merits were affirmed. More specifically, the Appeals Chamber upheld those
portions of the decision below dealing with the elements of direct and pub-
lic incitement to commit genocide. 38 Significantly, in respect of incitement,
the judges ruled:
The Appeals Chamber considers that the Trial Chamber did
not alter the constituent elements of the crime of direct and
public incitement to commit genocide in the media context
(which would have constituted an error) […] Furthermore, the
Appeals Chamber notes that several extracts from the [Trial
Chamber] Judgment demonstrate that the Trial Chamber did a
good job of distinguishing between hate speech and direct and
public incitement to commit genocide […]. The Appeals
Chamber will now turn to the Appellants’ submissions that the
Trial Chamber erred (1) in considering that a speech in am-
biguous terms, open to a variety of interpretations, can consti-
tute direct incitement to commit genocide, and (2) in relying
on the presumed intent of the author of the speech, on its po-
tential dangers, and on the author’s political and community
affiliation, in order to determine whether it was of a criminal
nature. The Appellants’ position is in effect that incitement to
commit genocide is direct only when it is explicit and that un-
der no circumstances can the Chamber consider contextual el-
ements in determining whether a speech constitutes direct in-
37
See, for example, ibid., para. 224 (rejecting argument that late filing of broadcast transla-
tions caused prejudice); para. 226 (rejecting argument regarding admission of evidence); pa-
ra. 229 (amending the prosecution list found not to be prejudicial); para. 235 (argument re-
garding obstruction to defense investigation found not to have merit); para. 257 (no proof
that right to have defense witnesses appear under the same condition as prosecution witness-
es was violated).
38
Ibid., para. 695.

citement to commit genocide. For the reasons given below, the

Appeals Chamber considers this approach overly restrictive. 39
Similarly, the Appeals Chamber upheld the convictions based on hate
speech as crimes against humanity (persecution). The Trial Chamber had
found that “hate speech targeting a population on the basis of ethnicity, or
other discriminatory grounds, reaches a sufficient level of gravity [as re-
quired by the case law] and constitutes persecution under Article 3(h) of its
Statute” and unlike the crime of indictment, it does not require a call to ac-
tion because it is not a provocation to cause harm but, as an affront to hu-
man dignity, “is the harm itself”. 40
Pushing back against this analysis, Nahimana claimed on appeal that
hate speech could not serve as the actus reus for the persecution offense
because it was not criminalized under customary international law. The ma-
jority of the panel, with only Meron dissenting, did not agree. It focused on
the question of whether hate speech violated fundamental rights and
whether the gravity threshold was met. 41 In accord with the Trial Chamber,
it found that hate speech per se violates the right to human dignity, and hate
speech “inciting to violence” violates the right to security (the chamber al-
so noted that hate speech on its own could not violate the rights to life or
physical integrity as it would require intermediate actors to facilitate the
requisite injuries to constitute a breach of these rights). 42
Regarding the gravity criterion, four of the judges (minus Meron)
specified that they did not feel compelled to decide whether “mere hate
speeches not inciting violence” were sufficient as a cumulative approach
was needed in respect of all pertinent media offerings. In the case at bar,
per the judges, hate speech was
accompanied by calls for genocide against the Tutsi group and
[took] place in the context of a massive campaign of persecu-
tion directed at the Tutsi population of Rwanda, this campaign
39
Ibid., paras. 696, 697.
40
Ibid.
41
Ibid., paras. 986, 987.
42
Ibid., para. 986. I have been critical of this portion of the Appeals Chamber judgment as the
panel squandered a golden opportunity to clarify whether hate speech on its own, as part of a
widespread or systematic directed against a civilian population, can constitute the actus reus
for CAH-persecution. Gordon, 2017, pp. 233, 234, 335, 336, see above note 8.

being also characterized by acts of violence (killings, torture

and ill-treatment, rapes …) and of destruction of property. 43
Notwithstanding these setbacks, the appeal was successful in revers-
ing liability based on pre-6 April (that is, the start of the genocide) trans-
missions. Similarly, the Appeals Chamber invalidated the convictions for
instigation to genocide, incitement to genocide, and crimes against humani-
ty (extermination and persecution) premised on Article 6(1) liability – that
is, Nahimana’s direct ‘commission’ of the crimes (namely, the illicit broad-
casts). Since parts of the convictions were reversed, the Appeals Chamber
reduced Nahimana’s life sentence to thirty years (with credit being given,
under Rule 101(D) of the ICTR Rules of Procedure and Evidence, for the
period already spent in detention). 44
26.2.4. Meron’s Dissent
Even though Nahimana’s sentence of incarceration was drastically reduced,
in spite of upheld convictions for incitement to genocide and crimes against
humanity (based on superior responsibility), Judge Meron thought the con-
siderably watered-down punishment was still too harsh. His dissent fo-
cused on the majority opinion’s being too permissive regarding speech as
the basis for liability. To begin, Meron observed that, “[t]he sheer number
of errors in the Trial Judgement indicates that remanding the case, rather
than undertaking piecemeal remedies, would have been the best course”. 45
He then turned to his objections regarding speech-focused liability.
Under any circumstances, he opined, “mere hate speech may not be the ba-
sis of a criminal conviction”. 46 Solely when it rises “to the level of inciting
violence or other imminent lawless action” may it be criminalized, he con-
cluded. 47 To back this pronouncement, he cited, among other things, the US
Constitution and US Supreme Court jurisprudence, noting that:
43
Nahimana Case Appeals Judgment, para. 988, see above note 8 (ellipsis in the original).
44
Ibid., para. 1052. With reference to the other two Media Trial defendants, Ngeze’s sentence
was reduced to 35 years. Barayagwiza had been technically sentenced to life in prison but
had it reduced to 35 years, with credit for time served (bringing it to twenty-seven), due to
certain procedural irregularities). Ibid., para. 1039. Based on the portions of the convictions
that were overturned, he was granted a further sentence reduction of three years by the Ap-
peals Chamber. Ibid., para. 1097.
45
Nahimana Case Appeals Judgment, Partially Dissenting Opinion of Judge Theodor Meron,
para. 1, see above note 8.
46
Ibid., para. 13.
47
Ibid., para. 12.

[T]he government may not prohibit the expression of an idea

simply because society finds the idea itself offensive or disa-
greeable […]. [U]nder the rubric of persecution, to criminalize
unsavory speech that does not constitute actual imminent in-
citement might have grave and unforeseen consequences. 48
Then Judge Meron criticized the persecution charge on a separate
ground. He pointed to the prosecution’s not demonstrating a link between
any RTLM broadcasts for which Nahimana was responsible and the wide-
spread or systematic attack against the civilian population that was the un-
derlying basis for the crimes against humanity charge. The conviction
should be overturned, he asserted, on that independent ground as well. 49
Given his view that Nahimana’s guilt based on persecution was inva-
lid, and that only portions of the incitement liability survived appeal, he
believed that Nahimana’s 30-year sentence was too severe. In the words of
Judge Meron:
Because I would reverse the conviction of Appellant Nahima-
na for persecution, I believe that the only conviction against
him that can stand is for direct and public incitement to com-
mit genocide under Article 6(3) and based on certain post-6
April broadcasts. Despite the severity of this crime, Nahimana
did not personally kill anyone and did not personally make
statements that constituted incitement. In light of these facts, I
believe that the sentence imposed is too harsh, both in relation
to Nahimana’s own culpability and to the sentences meted out
by the Appeals Chamber to Barayagwiza and Ngeze, who
committed graver crimes. Therefore, I dissent from Nahima-
na’s sentence. 50
48
Ibid. paras. 11–12, citing United States Supreme Court (‘US SC’), Texas v. Johnson, 21 June
1989, 491 U.S. 397, p. 414; US SC, Brandenburg v. Ohio, 9 June 1969, 395 U.S. 444, p. 447;
US SC, Watts v. United States, 21 April 1969, 394 U.S. 705, p. 708.
49
Judge Meron merely stated this with no authority supporting him – in point of fact, per ex-
isting law, no causal nexus need be shown – rather, the prosecutor must only prove that the
broadcasts were part of the attack, with the RTLM announcers being conscious that they
were part of the attack. See Gordon, 2017, p. 10, see above note 8, noting that the crime
against humanity of hate speech as persecution is committed as “part of a widespread or sys-
tematic attack directed against any civilian population, with knowledge of the attack”. This
does not mean that there must be a “causal nexus” between the hate speech and the attack.
Judge Meron merely asserted this without support.
50
Nahimana Case Appeals Judgment, Partially Dissenting Opinion of Judge Theodor Meron,
para. 1, see above note 8 (emphasis added).

26.3. Developments Post-ICTR Proceedings

26.3.1. Judge Meron’s Nomination to the MICT
On 22 December 2010, via UN Security Council Resolution 1066, the
Council created the MICT. 51 It was established to maintain the “jurisdiction,
rights and obligations and essential functions” of the ICTR and ICTY. 52
The portion representing the ICTR assumed that tribunal’s functions on 1
July 2012 and is based in Arusha, Tanzania (the ICTY branch, based in The
Hague, followed suit on 1 July 2013). 53 The MICT has three separate or-
gans – a judiciary, a prosecutor and a registrar. 54 Each is directed by an ap-
pointee given a renewable four-year term. 55
The MICT has a roster of 25 judges (only employed when necessary)
and they are nominated by their countries of origin. 56 Additionally, the
Mechanism designates one permanent judge to function as its President. 57
For its part, the United States nominated Theodor Meron, who in March
2012 was then chosen as the MICT’s first president by the UN Secretary-
General. 58 The UN renewed his term in 2016. 59 In January 2019, Judge
Carmel Agius was elected as President of the MICT, replacing Theodor
Meron. 60
26.3.2. Nahimana’s Incarceration and Application for Early Release
After his conviction, on 3 December 2008, ICTR prisoner Ferdinand Na-
himana was transferred across the African continent, from Arusha to Bam-
ako Central Prison, Mali, where he was meant to serve the remainder of his
51
United Nations Security Council, resolution 1066, 22 December 2010, UN Doc.
S/RES/1966 (2010) (‘SC Resolution 1066’) (https://www.legal-tools.org/doc/e79460). The
MICT’s Statute (‘MICT Statute’) is attached thereto.
52
Ibid.
53
MICT, “Mechanism for International Criminal Tribunals (MICT) Begins Work in The
Hague”, press release, 1 July 2013 (https://www.irmct.org/en/news/mechanism-
international-criminal-tribunals-mict-begins-work-hague); Chandra Lekha Sriram, Olga
Martin-Ortega and Johanna Herman, War, Conflict and Human Rights: Theory and Practice,
second edition, Routledge, London, 2014, p. 178.
54
UNSC Resolution 1066, Articles 8–15, see above note 51.
55
Ibid., Articles 10, 14, 15.
56
MICT, “Judges” (available on its web site).
57
Ibid.
58
MICT, “Judge Theodor Meron” (available on its web site).
59
Ibid.
60
MICT, “Judge Carmel Agius” (available on its web site).

sentence. 61 On 15 February 2016, Nahimana filed an application for early

release under Article 26 of the MICT Statute. 62 This statutory provision
contains one of the MICT’s core duties – supervising enforcement of sen-
tences handed down by the ICTR or the ICTY. Article 26 vests the MICT
President with the power to supervise and enforce ICTR and ICTY sen-
tences and decide on requests for pardon or commutation of sentences. 63 In
particular, it declares that “[t]here shall only be pardon or commutation of
sentence if the President of the Mechanism so decides on the basis of the
interests of justice and the general principles of law”. 64 Thus, President
Meron was given sole discretion to rule on Nahimana’s application.
Approximately six months after the application was filed, on 29 Au-
gust 2016, in accordance with paragraphs 3, 4, and 5 of the MICT Practice
Direction on the Procedure for the Determination of Applications for Par-
don, Commutation of Sentence, and Early Release of Persons Convicted by
the ICTR, ICTY or the Mechanism (‘Practice Direction’), 65 the following
information was gathered and transmitted via a memorandum from the
Registry to Judge Meron: (1) a 13 July 2016 letter from the Mali Ministry
of Justice and Human Rights; (2) an 11 April 2016 letter from the former
Warden of Koulikoro Prison (where Nahimana was incarcerated) [transmit-
ting (a) an 11 April 2016 report on the status of incarceration; (b) an 11
April 2016 psycho-social report; (c) a 28 December 2015 psychiatric ex-
amination report from Policlinique Pasteur]; (3) a 3 August 2016 letter
from Koulikoro Prison Warden Abdoulaye Fofana; and (4) a 25 August
2015 memorandum from the MICT Office of the Prosecutor. 66
Then, on 8 September 2016, the MICT sent the aforementioned items
to Nahimana, who filed a responsive pleading on 22 September. 67 These,
then, were the sole materials upon which Judge Meron considered the mer-
61
Paul R. Bartrop, “Nahimana, Ferdinand”, in Paul R. Bartrop and Steven L. Jacobs (eds.),
Modern Genocide: The Definitive Resource and Document Collection, Volume 4, ABC-
CLIO, Santa Barbara, 2015, p. 1774.
62
Nahimana Early Release Decision, para. 1, see above note 2.
63
64
Ibid.
65
Mechanism for International Criminal Tribunals, Practice Direction on the Procedure for the
Determination of Applications for Pardon, Commutation of Sentence, and Early Release of
Persons Convicted by the ICTR, the ICTY or the Mechanism, 5 July 2012, MICT/3, paras. 3,
4 and 5 (‘MICT Practice Direction’) (http://www.legal-tools.org/doc/244989/).
66
Ibid., para. 5.
67
Ibid., para. 6.

its of Nahimana’s early release application. It bears emphasizing that the

MICT governing instruments grant sole jurisdiction for release decisions to
the MICT President without calling for a hearing or input from other stake-
holders, including the MICT prosecutor or any relevant victims. 68 It should
also be noted that, in this case, Meron’s written decision, which will be the
object of the analysis that follows, is heavily redacted. So, notwithstanding
the narrow scope of due process just described, from this perspective alone,
there are apparent transparency deficits.
Even apart from all this, however, the unredacted portion of the deci-
sion is problematic in its own right and raises issues regarding integrity in
the post-conviction proceedings for defendants convicted by the ad hoc
tribunals and now before the MICT seeking early release. Those issues will
now be considered.
26.3.3. Examination of the Early Release Decision
26.3.3.1. An Overview of the Relevant Rules
The unredacted portion of the decision began with a consideration of the
MICT Rules of Procedure and Evidence (‘RPE’). Rule 150 of the RPE
provides: “The President shall, upon such notice, determine, in consulta-
tion with any Judges of the sentencing Chamber who are Judges of the
Mechanism, whether pardon, commutation of sentence, or early release is
appropriate”. 69 This is reinforced by MICT Practice Direction 7, which re-
quires the President to consult with other judges by forwarding information,
including the President’s comments about the case, to “Judges of the sen-
tencing Chamber who are Judges of the Mechanism”. 70
Rule 151 then states:
In determining whether pardon, commutation of sentence, or
early release is appropriate, the President shall take into ac-
count, inter alia, the gravity of the crime or crimes for which
the prisoner was convicted, the treatment of similarly-situated
prisoners, the prisoner’s demonstration of rehabilitation, as
68
For example, MICT Statute, Article 26, see above note 51; MICT Practice Direction, para. 9,
see above note 65.
69
MICT, Rules of Procedure and Evidence, 26 September 2016, MICT/1/Rev.2, Rule 150
(‘MICT RPE’) (emphasis added).
70
MICT Practice Direction, para. 7, see above note 65.

well as any substantial cooperation of the prisoner with the

Prosecutor. 71
26.3.3.2. MICT RPE Rule 151 Analysis

26.3.3.2.1. Gravity
26.3.3.2.1.1. The Offences
The bulk of Meron’s ruling centred on Rule 151. He started by recognizing
that the offenses for which Nahimana had been found guilty were of great
gravity. 72 In doing so, he cited the Media Case Trial Chamber’s insight that
the “power of the media to create and destroy fundamental human values
comes with great responsibility” and that those “who control such media
are accountable for its consequences”. 73 Similarly, Meron alluded to the
Trial Judgment finding that RTLM fostered contempt for Rwanda’s Tutsi
citizens and unequivocally called for their liquidation, which, in fact, led to
their mass slaughter. 74 He also recognized the Trial Chamber’s conclusion
that if the downing of President Habyarimana’s plane on 6 April 1994 was
the ‘trigger’ for the killings that followed, that RTLM was ‘the bullet in the
gun’ and that the killings resulted in part from its effectively disseminated
71
Ibid., Rule 151. In addition, Meron referred to Article 3(2) of the 13 May 2016 Agreement
between the United Nations and the Government of the Republic of Mali on the Enforce-
ment of Sentences Pronounced by the International Criminal Tribunal for Rwanda or the In-
ternational Residual Mechanism for Criminal Tribunals (https://legal-tools.org/doc/ulm6wv)
provides that the conditions of imprisonment shall be governed by the law of Mali Subject
to the Supervision of the Mechanism. Nahimana Early Release Decision, para. 10, see above
note 2. Article 8 of the Enforcement Agreement provides. inter alia. that, following notifica-
tion of eligibility for early release under Malian law, the President shall determine whether
early release is appropriate on the basis of the interests of justice and the general principles
of law, and the Registrar shall transmit the decision of the President to Mali, which shall ex-
ecute the terms of the decision promptly. Ibid. In this case, Meron observed, according to the
provisions of Article 35 of Mali’s Law No. 01-003 of 27 February 2001 on the prison system
and supervised education, “detainees who have provided sufficient proof of their improve-
ment could be eligible for parole or semi-custodial treatment”. Ibid., para. 11. Meron noted
in his decision that the Malian authorities state that Nahimana “meets the conditions set out
in Malian legislation for parole or semi-custodial treatment”, ibid. Meron noted, however,
that that even if Nahimana were eligible for early release under Mali’s domestic law, “early
release of persons convicted by the ICTR falls exclusively with in the discretion of the Pres-
ident pursuant to Article 26 of the Statute and Rules 150 and 151 of the Rules”. Ibid., pa-
ra. 12.
72
Ibid., para. 14.
73
Ibid., quoting Nahimana Case Trial Judgment, para. 945, see above note 28.
74
Ibid., quoting Nahimana Case Trial Judgment, para. 949, see above note 28

messages. 75 This, in turn, furnished ‘conclusive evidence’ of genocidal in-

tent. 76
26.3.3.2.1.2. Nahimana’s Role
Meron then examined the crucial part Nahimana played in conceiving,
launching, moulding and operating RTLM. He described Nahimana as the
“mastermind” of RTLM, who, during the Rwandan Genocide, voiced his
gratification that the radio station he founded had been “instrumental in
awakening” the Hutu population and “halting” the “Tutsi ethnic group”
when large-scale slaughter had been taking place for almost a month. 77 Na-
himana’s writings alluded to the “Tutsi league” – a “veiled reference to the
Tutsi population as a whole”, which he denigrated as Rwanda’s enemy. 78 In
this way, then, he operationalized the communications weaponry that
fought what he referred to as the war of “media, words, newspapers and
radio stations”, which he described during the genocide as a complement to
bullets. 79
26.3.3.2.1.3. Nahimana’s Awareness
Meron also emphasized Nahimana’s knowledge of his criminal activity
during the genocide. He made reference to the Trial Chamber’s conclusion
that “Nahimana was ‘fully aware of the power of words’ and used ‘the ra-
dio – the medium of communication with the widest reach – to disseminate
hatred and violence’”. 80 As a result, the Trial Chamber found, and Meron
conceded, “without a firearm, machete or any physical weapon”, Nahimana
“caused the deaths of thousands of innocent civilians”. 81 For this, he bore
superior responsibility since he did not use his de facto power and authority
to avert the “genocidal harm” the RTLM transmissions catalysed. 82
75
76
77
Ibid., para. 15, quoting Nahimana Case Trial Judgment, para. 966, see above note 28.
78
Ibid.
79
Ibid.
80
Ibid., para. 16, quoting Nahimana Case Trial Judgment, para. 1099, see above note 28.
81
82
Ibid., quoting Nahimana Case Trial Judgment, para. 972, see above note 28.

26.3.3.2.2. Treatment of Similarly Situated Prisoners

Meron then turned to the next Rule 151 criterion – the requirement of equal
treatment for “similarly-situated” prisoners in connection with early release
applications. The ratio provided here was clipped and shallow:
In this respect, I recall that ICTR convicts like Nahimana, are
considered ‘similarly situated’ to all other prisoners under the
Mechanism’s supervision and that all convicts supervised by
the Mechanism are to be considered eligible for early release
upon the completion of two-thirds of their sentences, irrespec-
tive of the tribunal that convicted them. 83
This was supported by a lone footnote, number 30, in which Meron re-
ferred to two other early release decisions – one each from the ICTY and
ICTR, respectively. In each case – Prosecutor v. Borovčanin (August 2016
decision) and Prosecutor v. Bisengimana (December 2012 decision) – the
defendant had been released after serving two-thirds of his sentence.
26.3.3.2.2.1. The Prosecutor v. Borovčanin
In the first case, defendant Ljubomir Borovčanin’s guilt stemmed from a
fairly limited hierarchical role tied to two incidents in Bosnia in July 1995,
during which he was a police brigade deputy commander. He was found
guilty of war crimes and crimes against humanity in reference to: (1) aiding
and abetting in the forcible transfer of civilians out of Potočari; and (2) fail-
ing to punish his subordinates who took part in killing prisoners in front of
a warehouse in Kravica. 84 Borovčanin was sentenced to 17 years and did
not appeal. 85 Significantly, he was originally on trial with Vujadin Popović,
Ljubiša Beara and Drago Nikolić, who all exercised overall leadership po-
sitions in reference to the charged crimes. 86 The Trial Chamber’s sentenc-
83
Ibid., para. 19, see above note 2.
84
International Criminal Tribunal for the former Yugoslavia, “Ljubomir Borovčanin Trans-
ferred to Denmark to Serve Sentence”, press release, 11 November 2011 (https://legal-
tools.org/doc/qw7qxb); MICT, The Prosecutor v. Borovčanin, Public Redacted Version of
the 14 July 2016 Decision of the President on the Early Release of Ljubomir Borovčanin, 2
August 2016, MICT-13-37-ES.I, para. 3 (‘Borovčanin Early Release Decision’) (http://
www.legal-tools.org/doc/2e491d/).
85
Borovčanin Early Release Decision, para. 3, see above note 84.
86
“Bosnian Serb Srebrenica Convict Ljubomir Borovčanin Freed”, in Balkan Transitional
Justice, 2 August 2016 (available on its web site).

ing Popović and Beara to life in prison, and Nikolić to 35 years, 87 helps
place Borovčanin’s subordinate role into its proper perspective.
26.3.3.2.2.2. The Prosecutor v. Bisengimana
The other case cited by Judge Meron in this portion of the early release de-
cision was the ICTR matter of Prosecutor v. Bisengimana. There, the de-
fendant was the mayor of a town called Gikoro in the Kigali-Rural Prefec-
ture of Rwanda. 88 In December 2005, he pled guilty to aiding and abetting
crimes against humanity (murder, extermination) committed against Tutsis
in his town between 13 and 15 April 1994. As with Borovčanin, this was a
rather low-level official. Even more striking, though, when contrasted with
Nahimana, was the fact that Bisengimana had actually co-operated with
prosecutors by pleading guilty.
26.3.3.2.2.3. The Absence of Legal Authority in Footnote 30
Quite conspicuously, Meron’s footnote 30 did not cite legal authority for
the proposition that “all convicts supervised by the Mechanism are to be
considered eligible for early release upon the completion of two-thirds of
their sentences, irrespective of the tribunal that convicted them”. He merely
referenced the two cases of Borovčanin and Bisengimana, suggesting this
had been the MICT’s practice (even though, as suggested above, the two
convicts in those cases do not seem to be similarly situated to the high-
ranking Ferdinand Nahimana). Meron did observe that a “convicted person
having served two-thirds of his or her sentence shall be merely eligible to
apply for early release and not entitled to such release, which may only be
granted by the President as a matter of discretion, after considering the to-
tality of the circumstances in each case”. 89 With this in mind, after first
confirming that, by Meron’s calculations, Nahimana served two-thirds of
his sentence by 27 March 2016, Meron went on to consider: (1) demonstra-
tion of rehabilitation; (2) substantial co-operation; and (3) “humanitarian
concerns”.
87
Ibid.
88
MICT, Prosecutor v. Bisengimana, Decision of the President on Early Release of Paul
Bisengimana and on Motion to File a Public Redacted Application, 11 December 2012,
MICT-12-07, para. 3 (‘Bisengimana Early Release Decision’) (http://www.legal-tools.org/
doc/a7d60f/; https://legal-tools.org/doc/urptdm).
89

26.3.3.2.3. Demonstration of Rehabilitation

Turning to the demonstration of rehabilitation, Meron relied on the reports
from the Malian prison officials. The “Psycho-Social Report”, for instance,
noted that “Nahimana is consistently ready to assist his fellow inmates
complete tasks required by the prison authorities. and he lives “in perfect
harmony” with both the prison inmates and the prison administration”. 90
Paragraph 24 is the most substantial in this portion of the decision and it is
characterized by similar statements. Somewhat comical among these is the
suggestion that the bookish Nahimana would physically help to “restrain”
his compatriots vis-à-vis prison officials – which is noted as “quite an
achievement among a group of intellectuals”. 91
26.3.3.2.4. Substantial Co-operation
That a former history scholar and university administrator would be polite
behind bars is no great revelation. What is enlightening, however, comes in
the paragraph that follows. Moreover, it is an omission. The topic is Na-
himana’s acceptance of responsibility. Significantly, the paragraph demon-
strated the RTLM mastermind has absolutely no contrition for his central
role in the Rwandan Genocide. Meron could only offer that Nahimana “has
never ‘questioned or minimised the genocide’ or the ‘criminal nature of
numerous broadcasts of the RTLM’ during that time”. 92 Nevertheless, Mer-
on had to aver, because Nahimana put it in his own Application for Release
(para. 4), that “he has disputed his own responsibility for these crimes”. 93
This is in stark contrast to the other two early decision releases cited by
Meron – Borovčanin and Bisengimana. In the former, the Bosnian Serb
deputy police commander did not appeal his conviction or sentence and
expressed that he had “no doubt whatsoever” that what he did “during the
war was wrong”. 94 In the latter, the former mayor pled guilty, which the
decision noted “constitutes cooperation with the Prosecution”. 95
Consequently, Meron had to admit that Nahimana “has at no time
cooperated with [the Prosecution] in the course of his trial, appeal, or at
90
Ibid., para. 22.
91
Ibid., para. 24. It must be noted that a nerd helping physically “restrain” other nerds from
armed prison guards does not seem like much of a feat!
92
Ibid., para. 25.
93
Ibid.
94
Borovčanin Early Release Decision, paras. 22–23, see above note 84.
95
Bisengimana Early Release Decision, para. 30, see above note 88.

any point while serving his sentence”. So, despite no evidence or remorse
or co-operation, Meron was able only to wanly intone that “Nahimana’s
lack of cooperation with the Prosecution […] is a neutral factor in deter-
mining whether or not to grant him early release”. 96
26.3.3.2.5. Humanitarian Concerns
As for the final Rule 151 factor, “humanitarian concerns”, Meron alluded
to Nahimana’s Application submission that “his age and ill health are
grounds for early release”. 97 No substantiation or details regarding the “ill
health” were provided (it should be pointed out, though, once again, that
the Decision is heavily redacted). It is noted that, at the time the application
was submitted, Nahimana was in his mid-60s – not the sort of extremely
advanced age, where grave health problems could easily be supposed. Not
surprisingly then, Meron rejected the ill health assertion and was dubious
of Nahimana’s claim that his age was a factor. 98
26.3.3.2.6. Conclusion of the Rule 151 Analysis
This was followed by a concluding paragraph. Having checked off few of
the boxes he seemed to indicate were important, and acknowledging the
gravity of Nahimana’s crimes, Meron perfunctorily granted Nahimana’s
Application in one skeletal sentence: “While the crimes of which Nahima-
na was convicted are very grave, the fact that Nahimana already completed
two-thirds of his sentence as of 27 March 2016, and the fact that he has
demonstrated some signs of rehabilitation weigh in favour of his early re-
lease”. 99
26.3.3.3. MICT RPE Rule 150 Analysis
Up to now, we have examined Meron’s consideration of Nahimana’s Ap-
plication for Early Release pursuant to Rule 151 of the MICT RPE. Yet, the
RPE demands more – the President must also take into account Rule 150,
which requires him to consult with other judges (and, as we have seen,
Practice Direction 7 mandates this as well). But Meron gave only short
shrift to this provision, noting quite cursorily by way of footnote: “Other
96
97
98
Ibid., para. 34. The then-86-year-old Meron could presumably speak from personal experi-
ence in that regard.
99

than myself, none of the Judges of the sentencing Chamber are judges of
the Mechanism. On that basis, no consultations with other Judges of the
Mechanism pursuant to Rule 150 of the Rules are required in determining
his Application”. 100
26.4. Overall Analysis of the Early Release Decision
26.4.1. Failure to Comply with MICT RPE Rules 151 and 150
The first aspect of the decision to consider is the coherence and probity of
the document itself. This, in turn, hinges on Meron’s analysis pursuant to
RPE Rules 151 and 150 – the heart of the early release merits decision.
Furthermore, here it is clear that Judge Meron failed to comply with the
spirit, if not the letter, of the explicit instructions provided in those rules.
26.4.1.1. The Rule 150 Analysis
In this respect, his treatment of Rule 150 stands out. As will be recalled,
that provision requires the President to consult “with any Judges of the sen-
tencing Chamber who are Judges of the Mechanism, whether pardon,
commutation of sentence, or early release is appropriate”. 101
In this regard, Judge Meron hung his hat on a technicality – it is true
that no member of the sentencing bench was on the MICT roster at that
time (again, it is not a group of full-time paid judges but persons on call
who are paid only for work performed when assigned to them). However,
Judge Fausto Pocar, a member of the sentencing panel who disagreed with
Meron, was still a judge at the ICTY – as was Meron himself. 102 It would
have been quite feasible to solicit Judge Pocar’s views given the close
structural and personnel link between the ICTY and the MICT. Regardless,
Judge Meron failed to do even that.
It is worth noting that the MICT seems to have taken cognizance of
the technical loophole Judge Meron exploited in the Nahimana Early Re-
lease Decision. The Mechanism recently amended Rule 150 to mandate
that “[i]f none of the Judges who imposed the sentence are Judges of the
Mechanism, the President shall consult with at least two other Judges”. 103
100
Ibid., para. 8, footnote 15.
101
MICT RPE Rule 150, see above note 69.
102
United Nations International Criminal Tribunal for the former Yugoslavia, “The Judges”
(available on ICTY’s web site) indicating that Judge Fausto Pocar and Judge Theodor Mer-
on were still on the ICTY bench.
103
MICT RPE, 4 March 2019, MICT/1/Rev.5, Rule 150, cf. above note 69.

Going even further, and consistent with the practice of the Residual Mech-
anism for the Special Court for Sierra Leone, Rule 150 could be revised to
require the early release application decision-maker to consult with at least
one judge from the panel that issued the final version of the sentence im-
posed on the defendant. 104 In the age of the Internet, this is eminently fea-
sible.
26.4.1.2. The Rule 151 Analysis
26.4.1.2.1. Extreme Gravity and Non-Similarly-Situated Prisoners
Examining the Rule 151 analysis also reveals serious issues. The evalua-
tion begins auspiciously with consideration of the gravity of Nahimana’s
crimes. The gist of this section is that the RTLM founder was a principal
architect of the Rwandan Genocide and desired the impact ‘Radio Machete’
had on fomenting and fuelling the massacres. Yet, what follows can only be
described as cognitive dissonance. In particular, the “equal treatment of
similarly-situated prisoners” exposition is a non-sequitur and internally in-
coherent. How could Meron assert that a Bosnian Serb police brigade
deputy commander and a Kigali-suburb mayor were “similarly situated”
vis-à-vis the Rwandan Genocide’s propaganda master? The imbalance in
criminal responsibility alone renders the comparison absurd.
26.4.1.2.2. Absence of Rehabilitation or Co-operation
But that disparity is exacerbated when one considers that these lower-level
players co-operated (through a guilty plea and non-appeal) and expressed
contrition. Nahimana fought every step of the way and continued to deflect
blame for his actions until the day of his release. What is worse, a bit of
research by the MICT would have revealed that Nahimana’s lack of repent-
ance only intensified after he began serving his sentence.
In a document he published on the Internet titled “Debate on the
Book of Jean Baptiste Nkuliyingoma”, Nahimana passionately denied any
sort of responsibility whatsoever in reference to his hate media activities
both before and during the Rwandan Genocide. 105 In the document, he
104
Residual Special Court for Sierra Leone, Rules of Procedure and Evidence, 30 November
2018, Rule 124 (‘RSCSCL RPE’) (http://www.legal-tools.org/doc/2b02c6/) (requiring the
early release decision-maker to consult “with the Judges who imposed the sentence”).
105
Ferdinand Nahimana, “Débat Sur le Livre de Jean Baptiste Nkuliyingoma: Inkundura. Ama-
teka y’intambara ya ruhekura yakuyeho igitugu ikimika ikindi”, 9 February 2012 (translated
by the author).

blanketly assigned all blame to the RPF and its alleged dissemination of
propaganda in the previous 20-plus years (alluding to, for instance, the
“propaganda, the rumor, and the false presentation of actual facts between
1990 and 1994 meant to demonize the opponents of the RPF and hide the
true nature of this movement”). 106 Among other core points of denial Na-
himana asserted here:
1. He alleged that the text of the communiqué read on Radio Rwanda,
when he was in charge of that radio station before the founding of
RTLM, as reported in various histories of Rwanda, was a fabrication
of Jean-Pierre Chrétien (Nahimana’s thesis supervisor) in his 1995
book Les Médias du Génocide and that the communiqué was selec-
tively redacted and read out of context without his knowledge and
contrary to his wishes. In any event, he insisted, the overall message
of the communiqué was an appeal for nonviolence. 107 (This assertion
is contrary to trial testimony as well as the histories of experts be-
yond reproach, such as Alison Des Forges in her book Leave None to
Tell the Story: “In March 1992 [when Nahimana was its director],
Radio Rwanda warned that Hutu leaders in Bugesera were going to
be murdered by Tutsi, false information meant to spur the Hutu mas-
sacres of Tutsi”. 108)
2. Similarly, Nahimana claimed that he was not responsible for the
reading of the communiqué and was sacked from ORINFOR [the
agency he directed that ran Radio Rwanda] by backchannel man-
oeuvrings of the RPF – not because of indignation throughout Rwan-
dan society and the international community, which, as we have seen,
pressured the government to remove Nahimana from the ORINFOR
post [as was widely reported]. 109 He also asserted that he was offered
a consular post in Germany but turned it down to return to the Uni-
versity. 110 (But according to Allison Des Forges: “He gave up teach-
106
Ibid., p. 6.
107
Ibid., pp. 13–14.
108
Alison Des Forges, “Leave None to Tell the Story”: Genocide in Rwanda, Human Rights
Watch, New York, 1999, p. 79.
109
Nahimana, 2012, pp. 14–18, see above note 105. See also Temple-Raston, 2005, p. 29, see
above note 21 (reporting that many in Rwanda and the international community at large
were appalled by the orchestrated slaughter in Bugesera and that, as a result of this, then-
Rwandan President Juvenal Habyarimana fired Nahimana from his ORINFOR post).
110
Ibid., pp. 15–16.

ing to take charge of government propaganda at ORINFOR. After be-

ing forced from this position, Nahimana was supposed to become the
Rwandan ambassador in Bonn, but the German government refused
to accept him. He tried to go back to the university, but his col-
leagues there also protested against his return”.) 111
3. It is false, he alleged, that the virulently anti-Tutsi newspaper Kan-
gura and its editor-in-chief, Hassan Ngeze (Nahimana’s co-defendant
in the Media Trial], were the mouthpiece of Hutu extremism – in fact,
they were a front for the RPF to spread anti-Tutsi hate speech so ex-
treme that it would discredit the Habyarimana regime and Hutus in
general. 112 Nahimana also claimed that Ngeze had been financed by
the American government, which funded his journalistic coverage of
the genocide (and distribution of images of the massacres to Ameri-
can news outlets). 113 (These allegations are so clearly spurious and
against the great weight of evidence adduced at trial, that there is no
need to even muster a detailed response.)
4. Nahimana acknowledged taking part in RTLM’s pre-6 April man-
agement but claimed that the media outlet did not broadcast a radical
Hutu hard-line anti-Tutsi message – it was only after 6 April that
RTLM’s content became genocidal. He averred, however, that he had
no control at that point. 114 (Nonetheless, he overlooked the specific
instances of RTLM’s pre-6 April incitement – explicitly brought to
his attention through communications with the Ministry of Infor-
mation (whose existence he acknowledged) and entirely ignored his
important position in the genocidal rump government, his damning
quotes during the genocide, and his successfully instructing RTLM to
refrain from attacking UN peacekeepers, given at the behest of the
French ambassador.)
Moreover, Nahimana made incredible assertions of acquittal – sug-
gesting that the Appeals Chamber Judgment fully exonerated him:
When he [Nkuliyingoma] speaks about RTLM, he clearly
opines that he and its shareholders had the intention and had
111
Des Forges, 1999, p. 85, see above note 108.
112
Nahimana, 2012, pp. 11–12, see above note 105.
113
Ibid., p. 12. Nahimana notes that Ngeze testified to this effect before the ICTR and has
maintained this claim ever since. Ibid.
114
Ibid., pp. 21–25.

made the decision to use RTLM as a tool of incitement to

commit crimes of extermination and genocide. This accusa-
tion does not stand up to scrutiny and cannot go unchallenged.
If certain debates and analyses disseminated on RTLM’s air
waves before 6 April 1994 did not correspond to the views or
beliefs or certain persons or groups of persons, especially due
to their tone or orientation, which was sometimes provocative,
indeed denigrating, I do not deny that. But that cannot consti-
tute grounds for accusing the RTLM shareholders to have
been motivated by the desire to commit genocide at the time
RLTM was founded. The judges of the ICTR Appeals Cham-
ber were of this opinion. After examining the legal documents,
the list of the RTLM corporation’s shareholders, my role with-
in this corporation and the broadcasts of this radio station,
they overturned the Trial Chamber’s guilty verdicts against me
as a principle for the “crimes of genocide, direct and public
incitement to commit genocide, conspiracy to commit geno-
cide, and extermination and persecution as crimes against
humanity”. 115
Two sentences after this, he alluded to his “acquittal” in no uncertain
terms. What Nahimana failed to include, however, was that he was convict-
ed of incitement to genocide and crimes against humanity (persecution) on
grounds of superior responsibility. Nor did he mention that he likely would
have been convicted of the other crimes if those had been charged under a
theory of superior responsibility (and not merely pursuant to direct person-
al responsibility under Article 6(1) of the ICTR Statute).
Nonetheless, this text is replete with denials and blame shifting. In it,
as well, Nahimana declared that those who think RTLM was part of the
extremist Hutu blueprint for Tutsi genocide merely spew “unfounded accu-
sations” and have “manifestly twisted the truth”. 116 He even went so far as
to assert that his atrocity convictions were owing to a frame-up by Report-
ers without Borders media expert Hervé Deguine, who brought RTLM’s
genocidal broadcasts to international attention during the 1994 Tutsi mas-
sacres. According to Nahimana:
In fact, the names “Radio Hate” and “Radio Télé La Mort
[Tele-Death] (RTLM)” are the invention of the association
115
Ibid., pp. 18–19, emphasis in the original and author’s translation from French.
116
Ibid., p. 19, referring to “accusations si infondées” and saying that anyone who believes this
have “manifestement tordu la verité” (author’s translation from French).

Reporters Sans Frontières (RSF) (Reporters without Borders).

It coined these names after July 1994, publicized them and
found support for them from certain Rwandan journalists who
were looking for work, money and name-recognition as well
as through Jean Baptiste Nkuliyingoma, the Minister of In-
formation of the RPF’s first government during this month of
July 1994. Hervé Deguine of RSF coordinated this propagan-
da campaign. He received money from RSF to put together a
collection of commissioned fabrications and publish them un-
der the title Rwanda : les médias du genocide [Rwanda: The
Media of Genocide]. He personally organized the witch-hunt
and verbal and written attacks against me; he caused me to be
arrested; he caused me to be convicted. 117
Nahimana’s bald-faced rejection of his own guilt in this tract has
been featured elsewhere. Also easy to find on the Internet is Jean-Baptiste
Nkuliyingoma’s commentary, which observes that Nahimana’s online in-
vective adopts “a clearly visible strategy to exculpate himself of all the
crimes for which he was found guilty by the ICTR, both at the Trial Cham-
ber and Appeals Chamber levels”. 118 Despite being easily accessible via a
very simple Google search, Judge Meron’s Early Release Decision made
no reference to Nahimana’s egregious demonstration of denial.
26.4.1.2.3. Acknowledging Unfounded Claims of Ill Health and
Offering Insufficient Grounds for Granting the Application
Even worse, Meron implicitly acknowledged the falsity of Nahimana’s bad
health claims. As a result, having already pointed out the Hutu propagan-
dist’s tremendous responsibility as a key architect of the Rwandan Geno-
cide, and acknowledged that early release is an eligibility privilege, not a
guarantee, Meron merely parroted the words of Malian prison officials re-
garding Nahimana’s docile prison demeanour. In effect, he ignored a mem-
orandum submitted by the Prosecutor, which referenced Nahimana’s lack
of co-operation and equated the RTLM founder with low-level convicts
who co-operated and/or admitted their guilt. Thus, early release was to be
granted, even though Nahimana had demonstrated not a shred of remorse
and arguably fabricated claims of ill-health. Meron merely alluded to Na-
117
Ibid., p. 23 (author’s translation from French).
118
Jean-Baptiste Nkuliyingoma, “The Book Inkundura: Can Ferdinand Nahimana Be Both
Judge and Jury?”, in La Tribune Franco-Rwandaise, 19 February 2012 (available on its web
site) (author’s translation from French).

himana’s having arrived at the two-thirds mark of his sentence and having
shown “some signs of rehabilitation” (although Meron never indicated spe-
cifically what they were).
26.4.1.2.4. A Lack of Legal Support for the Two-Thirds Rule
Moreover, what is the legal support for eligibility for early release at the
two-thirds mark in the first place? As it turns out, there is no statutory sup-
port for it. 119 It was simply a practice adopted by the judges at the ad hoc
tribunal for the former Yugoslavia. However, the ICTR had a different
practice from the ICTY. In contrast to the ICTY, the ICTR used a three-
quarters standard. 120 The greater severity of the crimes before the ICTR,
which arose within the context of a widespread and systematic genocidal
campaign where approximately 800,000 were murdered in approximately
three months, accounted for the policy divergence between the two tribu-
nals. 121
Further, as noted by Jonathan Choi, this early release practice runs
against the policy aims of the ad hoc tribunal framers as it confuses parole
with commutation:
The ICTY seems to have implemented early release policies
that are significantly more generous than its framers intended.
It has adopted something like a presumption that prisoners
need only serve two thirds of their sentences, apparently out
of confusion between commutation and parole […] However,
it is important to note at this point that the Statute only con-
templates the convicted person’s eligibility for pardon or
commutation of sentence, not for parole. This is a crucial dis-
tinction because, as we will see, domestic actors grant com-
mutation much less often than they do parole. The plain lan-
guage of the Statutes suggests that their framers intended early
release to be similarly rare. 122
So, if the early release policy is problematic in the first place, it is
exacerbated at the ICTY, where a two-thirds standard was applied. How is
it, then, that the two-thirds standard was transposed to ICTR convicts at the
119
Jonathan H. Choi, “Early Release in International Criminal Law”, in The Yale Law Journal,
vol. 123, no. 6, 2014, pp. 1792–1793.
120
Ibid., p. 1793.
121
Ibid.
122
Ibid., pp. 1793–1794, emphasis added.

MICT? The answer is simple: Judge Theodor Meron. In the 2012 Be-
singimana early release decision, as President of the MICT, he simply
made a unilateral decision to apply the two-thirds rule to Rwandan geno-
cidaires. 123 In his words:
While I acknowledge that adoption of the two-thirds eligibil-
ity threshold might constitute a benefit not previously recog-
nised for persons convicted by the ICTR, I do not consider
that this can justify discriminating between the different
groups of convicted persons falling under the jurisdiction of
the Mechanism. 124
26.4.2. Failure to Comply with Principles of Integrity

26.4.2.1. On a Judicial Level – the Appearance of Lack of
Impartiality and/or Bias
The shortcomings of the early release ruling are put into a clearer perspec-
tive when one considers the deontological normative framework surround-
ing it. Does the relevant law on judicial ethics support placing Judge Meron
in the position of being the sole decision-maker? A review of the law re-
veals a negative answer to this question.
Although the Charter of the International Military Tribunal at Nu-
remberg did not address the qualifications of judges and prohibited any
challenges to the composition of the bench, the statutes and rules of mod-
ern international criminal tribunals subject judges to principles of ethical
conduct. 125 Among these, to safeguard defendants’ rights and uphold insti-
tutional credibility, all such modern tribunals mandate that judges be inde-
pendent and impartial. 126
The MICT is no exception. Per MICT RPE Rule 18(A): “A Judge
may not sit in any case in which the Judge has a personal interest or con-
cerning which the Judge has or has had any association which might affect
his impartiality. The Judge shall in any such circumstance withdraw, and
123
Bisengimana Early Release Decision, paras. 20–21, see above note 88.
124
Ibid., para. 21.
125
Milan Markovic, “International Criminal Trials and the Disqualification of Judges on the
Basis of Nationality”, in Washington University Global Studies Law Review, 2014, vol. 13,
no. 1, p. 2.
126
Ibid. See, for example, International Criminal Court, Code of Judicial Ethics, 9 March 2005,
Res. ICC-BD/02-01-05, Articles 3, 4 (http://www.legal-tools.org/doc/383f8f/).

the President shall assign another Judge to the case”. 127 Here, as Meron
was President at the time of the Nahimana Early Release Decision, Rule 18
also provides the most senior judge would appoint a new judge to the
case. 128
In the Nahimana matter, Rule 18(A) clearly suggests excluding Mer-
on as the decision-maker in reference to the early release application. Mer-
on had a “previous association with the case” as an appellate judge on Na-
himana’s merits adjudication, and he had an “association that might affect
his impartiality” given that he dissented as to one of the key bases of con-
viction that was upheld and he explicitly called for a reduction of the de-
fendant’s sentence.
Complementing Rule 18(A), the related Rule 18(D) provides that
“[n]o Judge shall sit on any appeal in a case in which that Judge sat in first
instance”. 129 Although this rule is not exactly on point here (as the early
release application was not technically an “appeal”), in conjunction with
Rule 18(A), Meron’s service on the merits appeal panel and then in the fol-
low-up early release application capacity also militates in favour of exclu-
sion for the latter.
These points are underscored by the MICT’s “Code of Professional
Conduct for the Judges of the Mechanism” (MICT Judicial Conduct Code),
which had been adopted in 2015 and was in place when Judge Meron ruled
on Nahimana’s early release application. The Preamble of the Code explic-
itly recognizes that the “impartiality of judges is fundamental to ensuring
public confidence in a fair and transparent international judicial pro-
cess”. 130 In addition, Article 3(1) of the Code mandates that “Judges shall
be impartial and ensure the appearance of impartiality in the discharge of
their judicial functions”. 131
This is in line with national judicial ethics rules. For example, on
lack of impartiality grounds, the American Bar Association Model Code of
1Judicial Conduct, Rule 2.11(A)(6)(d) requires disqualification of a judge
127
MICT RPE, Rule 18(A), see above note 69.
128
Ibid.
129
Ibid.
130
Mechanism for International Criminal Tribunals, Code of Professional Conduct for the
Judges of the Mechanism, 11 May 2015, MICT/14/Art. 3 (‘MICT Judicial Conduct Code’)
(http://www.legal-tools.org/doc/23cc92/) (current code date is 9 April 2018; language on this
article has not changed).
131
Ibid., Article 3.

who has “previously presided as a judge over the matter in another

court”. 132 Similarly, pursuant to Canon 3(C)(1)(e) of the Code of Conduct
for United States Judges,
A judge shall disqualify himself or herself in a proceeding in
which the judge’s impartiality might reasonably be questioned,
including but not limited to instances in which […] (e) the
judge has […] participated as a judge (in a previous judicial
position) concerning the proceeding or has expressed an opin-
ion concerning the merits of the particular case in controver-
sy. 133
Civil law jurisdictions adopt a comparable deontological stance. Mali,
for instance, whose legal system is rooted in French law, 134 deals with a
lack of judicial impartiality in Articles 15 and 16 of its Code of Ethics for
Magistrates. Article 15 “is comparable to that of [ABA] Model Rule
2.11”, 135 which, as we have just seen, mandates disqualification of a magis-
trate who has previously served as a judicial officer over the same matter in
another tribunal.
Even if the rules were not so specific, the spirit of general judicial
ethical standards would strongly suggest excluding Judge Meron from be-
ing the sole adjudicator in reference to Nahimana’s early release applica-
tion. The portions of the MICT Judicial Conduct Code referred to above
132
American Bar Association, Model Code of Judicial Conduct, Rule 2.11(A)(6)(d).
133
Code of Conduct for United States Judges, 12 March 2019, Canon 3(C)(1)(e) (‘Code of
Conduct’). Although the Code of Conduct was created to govern the lower courts, for the
US Supreme Court, “the Code remains the starting point and key source of guidance for the
Justices”, John G. Roberts Jr., 2011 Year-End Report on the Federal Judiciary, THIRD
BRANCH (Admin. Office of the US Courts), December 2011, pp. 3–5. Similarly, Congress’s
enactment of 28 U.S.C. § 455 directing recusal circumstances for federal judges has been
used as a standard by the Justices, ibid. at 7-9, as noted in recent recusals by Associate Jus-
tice Neil Gorsuch in US SC, Royal v. Murphy, 2018 (a case denied an en banc hearing dur-
ing Gorsuch’s tenure on the appeals court); and Associate Justice Brett Kavanaugh, who has
recused himself from three cases for the 2018-2019 term: Jam v. International Finance Cor-
poration, Lorenzo v. Securities and Exchange Commission, and Azar v. Allina Health Ser-
vices (Kavanaugh served on the DC Circuit three-judge panel in two of these cases and par-
ticipated in an en banc order for the third).
134
Nicolas Boring, “Malian Rules of Judicial Ethics: A Comparative Study”, in United States
Library of Congress, September 2014 (“The Malian judicial system, like that of other former
French colonies such as Côte d’Ivoire, Senegal, Burkina Faso, and Benin, is strongly based
on France’s legal traditions”).
135
Ibid. Mali, Loi No. 02-054 du 16 décembre 2002 portant statut de la magistrature (Law No.
02-054 of December 16, 2002 on the Status of Judges), 31 December 2002, Articles 15, 16.

demonstrate this. And ad hoc tribunal jurisprudence is consistent. Thus, in

Prosecutor v. Furundžija, an ICTY Appeals Chamber held that “a Judge
should not only be subjectively free from bias, but also that there should be
nothing in the surrounding circumstances which objectively gives rise to an
appearance of bias”. 136 Once again, notwithstanding Meron’s stated disa-
greement regarding the disposition of Nahimana’s Media Case merits con-
viction and sentence, which clearly shows subjective bias, his service on
the merits appeals panel, apart from the dissent, arguably gives rise to an
appearance of bias from an objective perspective.
26.4.2.2. On a Systemic Level – the Appearance of Lack of Due
Process and Fairness
As we have seen, Judge Meron’s handling of the Nahimana early release
application raised questions of integrity in reference to his personal ap-
proach in ruling on the matter. But the way the application was treated also
raises integrity concerns from a systemic perspective. In other words, it is
generally considered that a judge’s ethical duty encompasses the fair ad-
ministration of justice, implicitly assuring that due process to all parties is
afforded. As noted by Alfred and Bruce Gitelson, “[p]rocedural due process
is not merely for the parties but, additionally, for the court itself”. 137 As a
result, judges have an affirmative duty “to do justice by rendering to every
[person her] due under the same law, equally, fairly”. 138
The MICT RPE hints at this ethical obligation in Rule 17, which re-
quires judges, upon investiture, to make a solemn declaration promising to
perform their duties “honourably, faithfully, impartially and conscientious-
ly”. 139 The MICT Judicial Conduct Code, which again, was in place at the
time of Meron’s ruling on the Nahimana early release application, is even
more specific. Rule 4.1 of the code declares that “Judges shall conduct
themselves with probity and integrity in accordance with their judicial of-
fice, thereby enhancing public confidence in the judiciary”. 140
136
International Criminal Tribunal for the former Yugoslavia , Prosecutor v. Furundžija, Ap-
peals Chamber, Judgement, 21 July 2000, IT-95-17/1-A, para. 189 (http://www.legal-
tools.org/doc/660d3f/).
137
Alfred and Bruce Gitelson, “A Trial Judge’s Credo Must Include His Affirmative Duty to be
an Instrumentality of Justice”, in Santa Clara Lawyer, 1966, vol. 7, no. 1, p. 24.
138
Ibid., p. 7.
139
MICT RPE, Rule 17, see above note 69.
140
MICT Judicial Conduct Code, Article 4, see above note 130.

National deontological codes are even more specific. For example,

per Canon 3(A)(4) of the Code of Conduct for United States Judges, “[a]
judge should accord to every person who has a legal interest in a proceed-
ing […] the full right to be heard according to law”. 141 In the case of the
Nahimana early release application, this might have included the prosecu-
tion and victims, among others.
Similar ethical mandates are enshrined internationally, as seen in the
2002 UN-sponsored “Bangalore Principles of Judicial Conduct”, which
were the product of a conference held in the presence of a UN special rap-
porteur and the Consultative Committee of European Judges. 142 That model
code combines the overlapping ethical principles of both common law and
civil law judicial cultures. Notably, Principle 5 declares that “[e]nsuring
equality of treatment to all before the courts is essential to the due perfor-
mance of the judicial office”. 143 Principle 5.3 then specifies that “[a] judge
shall carry out judicial duties with appropriate consideration for all persons,
such as the parties, witnesses, lawyers”. 144 Besides, according to Principle
6.5, “[a] judge shall perform all judicial duties […] fairly”. 145
26.4.3. The Integrity Deficits Placed in Perspective: The Residual
Special Court for Sierra Leone
The problems highlighted above in connection with Judge Meron’s treat-
ment of the Nahimana early release application stand in stark relief when
compared to the deontological and normative protocols of a sister mecha-
nism – the Residual Special Court for Sierra Leone (‘RSCSL’). In particu-
lar, the RSCSL RPE contain a dedicated section covering “Pardon, Com-
mutation of Sentence and Early Release” that includes carefully crafted
rules requiring consultation with the Prosecution (representing the interests
of victims and witnesses) and also with judges who imposed the sen-
tence. 146 In particular, RSCSL RPE Rule 124 provides:
141
Code of Conduct, Canon 3(A)(4), see above note 133.
142
Eric J. Maitrepierre, “Ethics, Deontology, Discipline of Judges and Prosecutors in France”,
Resource Materials Series No. 80, p. 266.
143
Judicial Group on Strengthening Judicial Integrity, The Bangalore Principles of Judicial
Conduct, 2002, Principle 5.
144
Ibid., Principle 5.3 (emphasis added).
145
Ibid., Principle 6.5.
146
Residual Special Court for Sierra Leone, Rules of Procedure and Evidence, 2 December
2017, Part IX, Rules 123, 124 (‘RSCSL RPE’) (http://www.legal-tools.org/doc/76a01e/).

There shall only be pardon, commutation of sentence or early

release if the President of the Residual Special Court, in ac-
cordance with Article 24 of the RSCSL Statute and in consul-
tation with the Judges who imposed the sentence where possi-
ble, and after considering the position of the Prosecutor, which
shall incorporate the interests of Prosecution witnesses and
victims, as well as the convicted person individually or
through counsel, so decides on the basis of the interests of jus-
tice and the general principles of law. 147
These protocols are bolstered by the Practice Directions on the Con-
ditional Early Release of Persons Convicted by the Special Court for Sierra
Leone assigning to the Registrar, in connection with handling convicted
prisoners, specific and extensive information-gathering and reporting tasks
(Directions 4-7), decision-making procedures (Direction 8), prisoner
agreement requirements (Direction 10), monitoring mechanisms (Direction
11), and consequences for violations of the prisoner agreements (Direction
12). 148 Direction 9(C) deals with the imposition of conditions for early re-
lease. Annex C of the Practice Directions contains a long list of general
conditions found in an Early Release Agreement template appended to the
back of the Practice Directions. Those conditions include, among others,
not committing new offenses, not possessing firearms, not inciting crimes,
and not engaging in violent behaviour. 149
The early release decision in the case of Prosecutor v. Moinina
Fofana, whose defendant was a senior leader of the Kamajors militia and
Civil Defence Forces in the Sierra Leone Civil War, demonstrates strict
compliance with these protocols. Fofana, who had been convicted for
crimes against humanity and sentenced to 15 years, was granted early con-
ditional release with certain restrictive stipulations spelled out quite clearly.
Those included: (1) completion of a behavioural training rehabilitation
program; (2) not approaching and/or intimidating relevant witnesses; (3)
not engaging in secret meetings intended to plan civil unrest or join local
politics; (4) strictly observing reporting schedules set by a designated local
Monitoring Authority and the Registrar; (5) personally reporting to special-
147
Ibid., Rule 124.
148
Residual Special Court for Sierra Leone, Practice Directions on the Conditional Early Re-
lease of Persons Convicted by the Special Court for Sierra Leone, 1 October 2013 (“SCSL
Practice Directions’) (http://www.legal-tools.org/doc/0260c4/).
149
Ibid.

ly-designated reporting centres, at least twice every month; and (6) accept-
ing regular visits made by the office of the Registrar to provide assurance
of security to such vulnerable former witnesses as may desire it. 150
26.4.4. Summary of Integrity Deficits in the Nahimana Early Release
Decision
A review of the record and decision in the Nahimana application for early
release raises serious questions about whether the relevant proceedings ad-
hered to either the letter or spirit of the well-established principles just con-
sidered. The reasons for this are legion: (1) a unilateral, lone-judge deci-
sion-making process; (2) the judge ruling on the early release application
after having been a member of the merits appeals panel; (3) that judge, at
the merits stage, having dissented for policy reasons on the legal grounds
for the conviction and the appropriateness of the punishment; (4) an arbi-
trarily-imposed two-thirds-mark release eligibility policy imposed previ-
ously by that same judge with no chance to have it vetted or litigated; (5)
no independent office or agency, such as a ‘Prisoner Release Analysis Unit’,
capable of thoroughly reviewing the record and all other relevant materials,
conducting appropriate research and providing insights to the decision-
maker in advance of a decision on the merits; (6) the absence of a hearing
where prosecutors, victims and/or other witnesses could be heard; (7) fail-
ure to impose conditions for early release premised on meeting certain key
benchmarks, such as expression of remorse, assurances of refraining from
speaking in public to defend past criminal conduct or to justify new ethnic
animosity; (8) the absence of any monitoring authority in the release juris-
diction to ensure compliance with the conditions; (9) a heavily redacted
written decision on early release; and (10) the lack of a mechanism to allow
for review of the early release decision.
26.5. Recommended Reforms
So, in light of all the issues highlighted in this chapter, how can we reform
the system to avoid the problematic process and outcome seen in the Na-
himana case, as well as ensure adherence to principles of integrity in future
post-conviction proceedings? Here, the recommendations are related to
150
Residual Special Court for Sierra Leone, Prosecutor v. Moinina Fofana, Public Decision of
the President on Application for Conditional Early Release, 11 August 2014, SCSL-2004-14
(http://www.legal-tools.org/doc/1027ef/).

both deontology and system coherence or fairness (which also has deonto-
logical implications).
26.5.1. Providing for Broader Deontological Coverage Within the
Existing MICT Governing Documents
Although, as we have seen, the MICT RPE and Code of Judicial Conduct
contain some guidance regarding the deontological duties of its magistrates,
this is not sufficiently systemic or rigorous. For instance, while the Code of
Judicial Conduct deals with impartiality, it is only in very general terms.
The MICT RPE is more specific and bars judges from presiding over mat-
ters when having any association that might affect impartiality or sitting on
an appeal where having previously sat in first instance. Nevertheless, that
document does not address the precise situation of the judge who previous-
ly presided over the same matter in another court.
Moreover, the current RPE does not generally ensure that important
instances of adjudication, such as ruling on early release applications, gen-
erate sufficient judicial consensus via, at a minimum, three-judge panels (as
opposed to a single judge sitting alone). Nor does the RPE provide for the
bare due process guarantee of participation of all relevant stakeholders in
such proceedings or the opportunity for appeal (which, we have seen, has
adjudicator-ethics implications). These issues need to be fixed in both the
RPE and perhaps in the MICT Statute and the Code of Judicial Conduct
itself.
26.5.2. Fixing Early Release Decision Protocols and Procedure
The problems outlined above in respect of the Nahimana early release deci-
sion suggest the fixes necessary to make the system work properly. Those
will be considered in turn below.
26.5.2.1. Return to the Three-Quarters Early Release Eligibility
Standard
As we have seen, as a threshold matter, it is not clear whether there is bona
fide legal support for eligibility for early release in the first place.
Switching back to a three-quarters standard for ICTR convicts would
be an important first step. However, given that we are also dealing with
mass atrocity crimes in respect of ICTY convicts too, perhaps the three-
quarters standard should be applied to them as well.

26.5.2.2. Establishment of a Prisoner Release Analysis Unit

At the domestic level, penal systems contemplating early release of con-
victs routinely employ agencies to analyse the propriety and/or advisability
of the release. For example, in many United States jurisdictions, it is typi-
cal for a ‘Parole Board’ (established to analyse suitability for ‘parole’, a
type of early release on conditions of rehabilitation and community safety)
to employ experts who create a ‘Parole Eligibility Report’. That document
informs the decision-maker of whether there is “a reasonable assurance,
after consideration of all of the facts and circumstances, including the pris-
oner's mental and social attitude, that the prisoner will not become a men-
ace to society or to the public safety”. 151
Similarly, in France, early release may be effectuated via “la libéra-
tion conditionnelle” (conditional liberation. 152 In order to decide whether a
prisoner is eligible for conditional liberation, a Commité Consultatif de
Libération Conditionnelle (Consultative Committee for Conditional Lib-
eration) prepares a report as to the suitability for conditional liberation of
eligible prisoners, and this report guides the judge in making decisions. 153
Instituting a ‘Prisoner Release Analysis Unit’ at the MICT would be
another key recommendation for reforming the early release decision pro-
cedural regime. The unit would be staffed by persons with expertise in var-
ious aspects of law enforcement, especially those related to corrections,
including psychology, social work and criminal justice. 154 As in domestic
jurisdictions, they would prepare a report for the relevant members of the
MICT judiciary to make informed and sound decisions regarding the early
release of ICTR and ICTY convicts.
151
Michigan Department of Corrections, “The Parole Process” (available on its web site).
152
France, Code de procédure pénale (Code of Criminal Procedure), 2 March 1959, Articles
729–733 (‘French Code of Criminal Procedure’) (https://legal-tools.org/doc/388101). See
also Christopher L. Blakesley, “Conditional Liberation (Parole) in France”, in Louisiana
Law Review, 1978, vol. 30, no. 1, pp. 2–3.
153
French Code of Criminal Procedure, Article 730, see above note 152; Blakesley, pp. 39–40,
see above note 152.
154
Radek Gadek, “Federal Probation Officer Career, Job Description & Salary Info”, Criminal
Justice Online Blog, 31 January 2019 (available on its web site) (describing qualifications of
personnel in comparable positions, in particular, US Probation Officers).

26.5.2.3. Hearing for All Relevant Stakeholders

As highlighted previously, the Nahimana early release decision was made
without an opportunity for all relevant stakeholders to be heard. For pur-
poses of ensuring due process and fairness to all concerned parties, such a
hearing is routine in domestic jurisdictions. In the United States, for in-
stance, pursuant to Section 2967.19(F) of the Ohio Revised Code: “The
court shall not grant [a Petition for Early Release] to an offender without
holding a hearing”. 155 Further, under subsection (H) of that provision:
If the court schedules a hearing under this section, at the hear-
ing, the court shall afford the offender and the offender’s at-
torney an opportunity to present written information and, if
present, oral information relevant to the offender's early re-
lease. The court shall afford a similar opportunity to the pros-
ecuting attorney, victim or victim's representative, as defined
in section 2930.01 of the Revised Code, and any other person
the court determines is likely to present additional relevant in-
formation. 156
Similarly, in France, there is a hearing on applications for conditional
liberation where, in addition to the prisoner, the prosecution and victims
can be heard. 157 For convicts sentenced to more than ten years, that hearing
is held before the Tribunal d’Application des Peines (for lesser sentences,
before the Juge d’Application des Peines). 158
It is submitted that a comparable hearing in connection with applica-
tions for early release before the MICT would go a long way toward com-
pensating for the current regime’s due process deficits. In particular, it
would crucially invest the procedure with greater institutional integrity
(with corresponding deontological benefits).
26.5.2.4. Imposing Conditions if Early Release Is Granted
Penal regimes that incorporate the early release option always do so prem-
ised on sufficient evidence of the prisoner’s satisfying certain basic condi-
tions both prior to and after release (for the latter, based on the probabilities
in light of the evidence). In his article “The Innocent Prisoner’s Dilemma:
155
Ohio Revised Code, 22 March 2019, Title 29, Section 2967.19(F).
156
Ibid., Section 2967.19(H) (emphasis added).
157
British Embassy Paris, Information Pack for British Prisoners in France, British Embassy
Paris, 30 June 2014.
158
Ibid.

Consequences of Failing to Admit Guilt at Parole Hearings”, Daniel Med-

wed provides a helpful list of these, which includes expressions of remorse,
the likelihood of recidivism by the inmate, public safety, behaviour during
incarceration, institutional record, the nature of the crime and criminal his-
tory, and evidence of rehabilitation. 159
One could easily imagine similar conditions being imposed in respect
of granting early release to ICTR or ICTY convicts at the MICT. In addi-
tion to the criteria enumerated by Daniel Medwed, MICT conditions could
also take into account securing promises from the prisoner that have rele-
vance in the mass atrocity context, such as refraining from speaking in pub-
lic to defend past criminal conduct or spur a fresh outbreak of ethnic ani-
mosity. These could be incorporated explicitly into the MICT Practice Di-
rections.
Indeed, only recently, the MICT has begun to impose such conditions.
In January 2019, Rwandan genocidaire Aloys Simba was the first ICTR or
ICTY convict to be released early under certain defined conditions. 160
Among others, he was asked to pledge not to “interfere in any way with the
proceedings of MICT, or administration of justice”; to “conduct himself
honorably and peacefully […] and not to engage in secret meetings intend-
ed to plan civil unrest or any political activities”; and not to “discuss [his]
case, including any aspect of the 1994 genocide against the Tutsi in Rwan-
da with anyone […] nor make any statements denying the 1994 geno-
cide”. 161 What is more, as demonstrated above, releasing convicts early
under quite restrictive conditions has also been a feature of the Special
Court for Sierra Leone. 162
159
Daniel Medwed, “The Innocent Prisoner’s Dilemma: Consequences of Failing to Admit
Guilt at Parole Hearings”, in Iowa Law Review, 2008, vol. 93, pp. 493, 510, 511.
160
Hola, 5 July 2019, see supra note 6. Simba, a retired lieutenant colonel and former member
of parliament who had directed militias in the massacre of Tutsis in Gikongoro, had been
convicted by the ICTR of genocide and crimes against humanity (persecution) and sen-
tenced to twenty-five years imprisonment. See ICTR, The Prosecutor v. Aloys Simba, Trial
Chamber I, Judgement and Sentence, 13 December 2005, ICTR-01-76, (http://www.legal-
tools.org/doc/373ff0/).
161
Hola, 5 July 2019, see above note 6.
162
Ibid.

26.5.2.5. Establishing a Monitoring Authority to Ensure Compliance

with Release Conditions
Imposing conditions for early release is meaningless if a prisoner’s post-
release compliance with those conditions cannot be monitored. Thus, it fol-
lows that a local monitoring authority must be put in place. The Residual
Special Court for Sierra Leone has such a mechanism. It would appear to
consist of an agreement with local authorities in the community where the
prisoner is released to supervise compliance with the release conditions. 163
At the MICT, as at the RSCSL, this would operate under the supervision of
the Registrar. 164
26.5.2.6. Unredacted Decisions and Appellate Review
Finally, as suggested above, for purposes of increasing transparency and
fairness, written decisions in respect of early release applications at the
MICT should be unredacted so that all of the judicial reasoning can be con-
sidered by the parties and the public. Related to this, to the extent that the
reasoning is found wanting, the parties before the MICT in such matters
should have the right to appeal. Clearly, the soundness of Meron’s decision
can be called into question here but it is difficult to know all of his points
of consideration given the prominent portions of the decision that are
blacked out. What is worse, quite unfortunately in light of its very poor
quality, that decision cannot be appealed.
Unredacted written decisions and the right of review are common
features in early release procedural regimes. Incorporating them into the
MICT framework would, therefore, be consistent with best practices and in
furtherance of promoting integrity in international criminal law post-
conviction proceedings. 165
26.6. Conclusion
‘Integrity’, the subject of this volume, has two distinct meanings. On the
one hand, according to the Cambridge Dictionary, it refers to “the quality
163
Residual Special Court for Sierra Leone, Practice Direction on the Early Release of Persons
Convicted by the Special Court for Sierra Leone, 1 October 2013, Annex C (http://
www.legal-tools.org/doc/0260c4/).
164
Ibid.
165
See, for example, California Department of Corrections and Rehabilitation, “Life Parole
Process” (available on its web site).

of being honest and having strong moral principles [and standards]”. 166 At
the same time, it encompasses the notion of “wholeness and unity”. Our
examination here of integrity in post-conviction proceedings in internation-
al criminal law has implicated both of these definitions.
Certainly, much of the analysis in this chapter has focused on the de-
ontological deficits in the Nahimana Early Release Decision. The anaemic
nature of the MICT’s governing documents insofar as judicial ethics are
concerned, the fact that a judge who had sat on the merits appeals panel,
and explicitly expressed dissatisfaction with the grounds for conviction and
the extent of punishment, then served as the lone decision-maker for an
application for early release, and the subsequent poorly reasoned and inter-
nally incoherent decision itself – all these factors raise serious questions
about the judge’s compliance with standard canons of professional respon-
sibility, particularly lack of impartiality and/or existence of bias. Thus, the
first aspect of ‘integrity’ has featured prominently in these pages.
Nevertheless, that other dimension of ‘integrity’, to wit, wholeness,
cohesion, coherence (which as explained by Alfred and Bruce Gitelson, has
deontological implications) 167 has also come into play. One must surely call
into question whether the early release decision-making regime at the
MICT reflects a holistic vision of the overall procedural scheme. In the first
place, only a rather myopic view of the ad hoc tribunal or MICT procedural
landscape would ignore the distinct possibility that a judge from the ICTY
or the ICTR might sit as a decision-maker in respect of an early release ap-
plication at the MICT. After all, the MICT judicial roster is nothing short of
an honour roll of emeritus ad hoc tribunal magistrates. ‘Integrity’, in this
context, would undoubtedly include a provision in the MICT Statute ex-
cluding the decision-maker from presiding over the early release decision if
he or she participated in making the ad hoc merits decision. This is doubly
true if he or she took issue with the grounds for conviction and/or the ex-
tent of punishment.
As well, ‘integrity’ in terms of wholeness or coherence comes into
play when the gravity of prisoners’ crimes vis-à-vis one another is ignored
and the voices of important stakeholders, most prominently victims, are
entirely excluded. Similarly, the absence of an unredacted written opinion
supporting the early release decision, as well as the right of appeal for
166
Cambridge Dictionary, “Integrity” (available on its web site).
167
Gitelson and Gitelson, 1966, p. 24, see above note 137.

those parties, including the prosecution, whose interests are affected by that
decision, betrays a substantial lack of inclusive perspective.
This chapter has explained how these deontological and tunnel-
vision problems can be remedied. Beefing up the imperatives in the exist-
ing MICT Code of Judicial Conduct, the RPE and the Statute regarding im-
partiality, bias, and prior service in the same matter would go a long way
toward ensuring that the Nahimana early release decision problems do not
replicate themselves going forward. At the same time, returning to the
three-quarters early release policy for ICTR convicts, expanding the scope
of process to include a prisoner release analysis unit, requiring submission
of a report featuring that unit’s analysis, identifying a local monitoring
mechanism to ensure compliance with conditions, and mandating a bal-
anced or participatory briefing regime or court hearing, transparent written
decisions and a right of appeal could remedy the structural integrity issues.
Unfortunately, in many ways, it is too late for meaningful change in
respect of ICTR defendants. As reported by Barbara Hola:
Between 1998 and 2015, the ICTR convicted 59 former gov-
ernmental and public officials, military, militiamen, journalists,
clergy and businessmen for their involvement in the genocide
of Rwanda’s Tutsis. By now […] twenty-one have been set
free from prisons in West Africa and Europe. Only five served
their whole sentences. 168
That said, important ICTR defendants are still incarcerated and re-
forming the early release regime may yet have a significant impact. Most
prominently, using the two-thirds rule, Théoneste Bagosora, the chief archi-
tect of the Rwandan Genocide, often referred to as ‘Rwanda’s Himmler’, is
now eligible for early release. 169 It is a given that he will file an early re-
168
Hola, 5 July 2019, see above note 6. As Hola notes, “[t]he proportion of those who were
granted early release before serving their full sentence is even higher at the ICTY. Out of 59
individuals who are by now out of prison, 55 (93%) have been released early by the Yugo-
slav Tribunal”. Ibid.
169
McGreal, 18 December 2008, see above note 16. As McGreal notes:
You might call him the Heinrich Himmler of Rwanda. Theoneste Bagosora was less
grand than the Nazi SS leader, eschewing pitch-black uniforms and grand military pa-
rades, but he espoused an ideology as hateful and ultimately as deadly as the man who
oversaw the Holocaust. And he was just as organised […] Bagosora was at the centre of
what the prosecution called ‘preparing the apocalypse’.
Bagosora was originally sentenced to life in prison but the sentence was reduced on ap-
peal to 35 years. See “Rwanda Genocide: Bagosora’s Life Sentence Reduced”, BBC News,

lease application, and so the clock is ticking. A lack of ethical and proce-
dural integrity has already resulted in the unjust early release of the
‘Rwandan Goebbels’; it is hoped that an integrity course correction will
mean a different result for the ‘Rwandan Himmler’.
14 December 2011 (available on its web site). Using the two-thirds formula, he is eligible
for early release beginning in July 2019. Hola, 5 July 2019, see above note 6.

PART VI:
INDEPENDENCE AND INTEGRITY
27
______
Judicial Independence and Accountability at

International Criminal Courts and Tribunals
Ivana Hrdličková and Adrian M. Plevin *
27.1. Introduction
The legal profession has existed for over two thousand years. From the
Greek city-states and the Roman Empire to the present day, lawyers have
actively executed a vital role in the formulation and application of the law. 1
Because of this role and the nature of their duties and obligations to their
clients, lawyers are subjected to a higher standard of conduct than most
citizens in terms of personal integrity, professional conduct and ethics. Yet
the role of the judge is separate and apart from that of others in the legal
profession. Judges occupy the most prestigious role in the profession, hold-
ing positions of authority which presuppose respect for the highest stand-
ards of personal and moral responsibility. As a result, judges are expected
*
Judge Ivana Hrdličková holds a Ph.D. from Charles University. She is the President of the
Special Tribunal for Lebanon (‘STL’). She began her career as a Judge in the Czech Repub-
lic in 1990 and has presided over both civil and criminal cases. Since 2008, Judge Hrdličko-
vá also acts as a legal expert of the Council of Europe. She participated in a number of in-
ternational legal and judicial projects, such as the Euro-Mediterranean efforts to increase ju-
dicial co-operation between the Mediterranean-European Development Agreement countries.
Adrian Plevin obtained his LL.M degree from Leiden University. He is a Legal Officer in
the Office of the President and Appeals Chamber of the STL. He began his career in domes-
tic civil and criminal litigation practice, serving as a member of the Human Rights Commit-
tee of the Law Society of South Australia. He has since held positions in the Appeals Cham-
ber and Office of the President of the United Nations International Criminal Tribunal for the
former Yugoslavia (‘ICTY’). The authors are indebted to Nicolas Guillou, Cécile Ouba and
Helen Brown for their comments and contributions to earlier iterations of this chapter. Any
errors or inaccuracies remain the authors’ alone. The opinions, views, conclusions and rec-
ommendations contained in this chapter are expressed by the authors in their private capaci-
ty and do not necessarily reflect those of any respective national judiciary, the STL or ICTY,
nor can be attributed to those entities and institutions, nor the United Nations in general.
1
See, for example, Anton Hermann Chroust, “Legal Profession in Ancient Athens”, in Notre
Dame Law Review, 1954, vol. 29, no. 4, pp. 339–389; Anton Hermann Chroust, “Legal Pro-
fession in Ancient Imperial Rome”, in Notre Dame Law Review, 1955, vol. 30, no. 4,
pp. 521–616; Edward M. Harris and Lene Rubinstein (eds.), Law and the Courts in Ancient
Greece, Duckworth, London, 2004.

to adhere to even stricter standards than other lawyers. These factors are
equally true of the international judge. 2
Being an international judge entails occupying an office that society
views with prestige and vests with substantial power afforded only to a se-
lect few. At the same time, it presumes that the office-holder will embody
the highest standards of personal and professional moral conduct. For many,
being an international judge is more than a job; it is a calling and the cul-
mination of many years of experience in the profession. In this context, it
bears recalling the words of the American philanthropist J.D. Rockefeller
Jr., that “every right implies a responsibility; every opportunity, an obliga-
tion; every possession, a duty”. It is precisely because of the powers given
to international judges that it is crucial to ensure their responsibility and
accountability.
The accountability of judges entails, stricto sensu, an expectation of
transparent and well-reasoned decisions and judgments delivered in ac-
cordance with the law. In most jurisdictions, this is ensured through the
principle of open justice and by subjecting the vast majority of judicial de-
cisions to the possibility of appeal. 3 But judicial accountability is not lim-
ited to procedural remedies for litigants. It also entails accountability of the
judicial milieu: the responsibility of individual judges and judicial institu-
tions to perform their functions for the ultimate benefit of the communities
they serve, and the specific responsibility to account for the use of public
resources and expenditure of public finances. To adopt the words of Chief
Justice Tom Bathurst of the New South Wales Supreme Court:
The courts receive funds from the public purse. To my mind
that carries with it an obligation of accountability, not only to
deliver quality judgments, but to be able to demonstrate that
money is being spent efficiently. Accountability promotes
good decision-making and ensures that the power of courts to
spend money is not uncontrolled. 4
Bathurst distinguishes (legitimate) transparency and accountability
from (illegitimate) executive interference in the judicial branch. In this
chapter, we explore how the regulation of duties, obligations and responsi-
2
See Daniel Terris et al., The International Judge: An Introduction to the Men and Women
Who Decide the World’s Cases, Brandies University Press, Waltham, 2007.
3
See Tom Bathurst, “Separation of Powers: Reality or Desirable Fiction?”, Judicial Confer-
ence of Australia Colloquium, Sydney, 11 October 2013, para. 21.
4
Ibid., para. 22.

27. Judicial Independence and Accountability at
bilities of judges is achieved legitimately without compromising the cor-

nerstone of any successful criminal justice system: the independence of the
judiciary. The chapter proceeds on the premise that guaranteeing judicial
independence is an essential means for ensuring fair, independent and im-
partial trials in any successful justice system, international courts and crim-
inal tribunals being no exception. 5 More specifically, we examine the con-
cept of judicial accountability and explore possible future means of ensur-
ing that the balance between independence and accountability at interna-
tional criminal tribunals continues to promote universal values that under-
pin international justice and the rule of law. In so doing, we affirm the view
that judicial accountability should not be considered a threat to legitimate
judicial independence, but rather promoted as a means of strengthening and
protecting it.
Amidst current concerns that multilateralism is under growing pres-
sure, which may increase the scrutiny of international courts, 6 this antholo-
gy and the joint research project by the Centre for International Law and
Research Policy (‘CILRAP’) and the International Nuremberg Principles
Academy (the ‘Integrity Project’) presents a welcome forum for exploring
the relationship between the integrity of international courts and the inde-
pendence and accountability of international judges. Thus, the focus of this
chapter is an exploration of the relationship between judicial independence
and accountability, and the importance of its institutionalization for interna-
tional criminal courts and tribunals. As one of the core aims of the Integrity
Project is to explore ‘integrity’ in the context of international justice, we
deal with the former component first, examining the relationship between
integrity and accountability, before addressing the correlation between ju-
dicial accountability and judicial independence.
We then turn to the latter, and explore the progressive development
of both international standards and the regulation of judicial accountability
5
See, for example, Theodor Meron, “Judicial Independence and Impartiality in International
Criminal Tribunals”, in American Journal of International Law, 2005, vol. 99, no. 2, p. 359.
Throughout this chapter, the term ‘international judges’ is used in a general sense to denote
judges holding office at international courts and tribunals, irrespective of their status as na-
tional judges or international judges in the case of hybrid criminal tribunals such as the Spe-
cial Tribunal for Lebanon (‘STL’) or Extraordinary Chambers in the Courts of Cambodia
(‘ECCC’).
6
No. 93 (2018), Torkel Opsahl Academic EPublisher, Brussels, 2018, p. 1 (https://
www.toaep.org/pbs-pdf/93-bergsmo/).

at international courts and tribunals. In response to some of the core ques-

tions arising from the Integrity Project, relating to measures available to
States and institutions moving forward, we examine the recommendation
arising from the Paris Declaration on the Effectiveness of International
Criminal Justice, regarding the establishment of a common disciplinary
mechanism for all international criminal tribunals. 7
27.2. The Integrity-Accountability Paradigm
The integrity of a society’s judiciary is essential to ensuring public confi-
dence in judicial proceedings and key to ensuring the legitimacy and func-
tionality of a given judicial system. Integrity is essential for ensuring socie-
ties can trust in their judges and judicial institutions, and indeed, is essen-
tial to the rule of law itself. So critical is the concept of confidence in the
judiciary that it pressed French novelist and playwright, Honoré de Balzac,
to implore that “to distrust the judiciary marks the beginning of the end of
society. Smash the present patterns of the institution, rebuild it on a differ-
ent basis […] but don’t stop believing in it”. 8
The word ‘integrity’ itself is derived from the French term ‘intégrité’,
meaning innocence, blamelessness and purity; and evolved from the Latin,
‘integer’, meaning whole or complete. 9 It is the quality of being honest and
having strong moral principles, and refers to a personal choice to hold one-
self to consistent and noble standards (that is, ethics). 10 This definition suf-
fices when conceptualizing integrity as applied to the individual judge.
7
Representatives of International Courts and Tribunals, Paris Declaration on the Effective-
ness of International Criminal Justice, 16 October 2017 (‘Paris Declaration’)
(https://www.legal-tools.org/doc/ow1amx/).
8
Honoré de Balzac, quoted in Otto Kirchheimer, Political Justice: The Use of Legal Proce-
dure for Political Ends, Princeton University Press, Princeton, 1961, p. 175. See Arthur
Selwyn Miller, “Public Confidence in the Judiciary: Some Notes and Reflections”, in Law
and Contemporary Problems, 1970, vol. 35, no. 1, p. 69.
9
10
On the interplay between law, morality, and ethics, see, for example, Peter Michael Stephen
Hacker and Joseph Raz, Law, Morality, and Society: Essays in Honour of H.L.A. Hart, Clar-
endon Press, Oxford 1977; H.L.A. Hart, Law, Liberty, and Morality, Stanford University
Press, Stanford, 1963; Jocelyn M. Pollock-Byrne and Jocelyn M. Pollock, Ethics in Crime
and Justice: Dilemmas and Decisions, Brooks/Cole, Pacific Grove, 1989; Roscoe Pound,
“Law and Morals–Jurisprudence and Ethics”, in North Carolina Law Review, 1945, vol. 23,
no. 4, pp. 185–222; Joseph Raz, Ethics in the Public Domain, Clarendon Press, Oxford,
1994.

But what about when we speak of the intrinsically related yet sepa-
rate notion of integrity of judicial institutions? Here, integrity often de-
mands the adherence of individuals within a judicial system to a firm moral
code. But it also requires the application of rules or principles, by which
judicial institutions are governed, rather than the application of some com-
mon denominator of conduct of judicial office-holders. In this sense, the
strongest judicial institutions are those which are comprised of members
who uphold high standards of personal integrity and who are governed
equally by defined principles that permit institutional integrity to also
flourish. This notion was recognized in the preamble of the Bologna and
Milan Global Code of Judicial Ethics 2015, adopted at the International
Conference of Judicial Independence, which proclaims that:
Public confidence in the judicial system and in the moral au-
thority and integrity of the judiciary is of the utmost im-
portance in a modern democratic society and it is essential that
judges, individually and collectively, respect and honour judi-
cial office as a public trust and strive to enhance and maintain
confidence in the judicial system. 11
Maintaining public confidence in the integrity of the judiciary thus
requires not only the identification of applicable ethical and professional
standards, but the application and enforcement of them. Accountability,
therefore, serves as both a means of ensuring personal integrity of individ-
ual judges and as a method of assuring institutional integrity.
In the context of international criminal courts and tribunals, this insti-
tutional integrity is crucial to ensuring that international criminal justice
remains credible. Credibility does not demand that these courts and tribu-
nals strive for judicial outcomes that satisfy the interests of their myriad
stakeholders – such as prosecutors and defence counsel, victims of crimes,
accused persons, the legal community, civil society, or the States that pro-
vide the funding and diplomatic support necessary for these institutions to
function. Rather, credibility requires that stakeholders can be confident that
the exercise of judicial powers at these international bodies is professional,
ethical and motivated only by the fair interpretation and application of the
law, irrespective of the outcome of individual decisions.
11
Bologna and Milan Global Code of Judicial Ethics, June 2015, Preamble (‘Global Code of
Judicial Ethics’) (https://www.legal-tools.org/doc/cq44mw/). See Bangalore Principles of
Judicial Conduct (‘Bangalore Principles’), 25–26 November 2002, Preamble
(https://www.legal-tools.org/doc/xwake8/).

Stated alternatively, in order to ensure their integrity, international

criminal courts and tribunals must strive to achieve two aims. The first is
related to the composition of the judiciaries of these institutions. They must
be comprised of professional, capable judges, possessing the highest possi-
ble moral standards. This is commensurate with the practice of appointing
judges to international criminal courts and tribunals that have been careful-
ly selected to be persons of high moral character, impartiality and integri-
ty, 12 and who possess, depending on the jurisdiction, “the qualifications
required in their respective states for appointment to the highest judicial
offices”, 13 “experience”, 14 “extensive judicial experience”, 15 or experience
12
The Republic of Kosovo, Law on Specialist Chambers and Specialist Prosecutor’s Office
(‘KSCSPO’), 3 August 2015, 05/L-053, Article 27(1) (‘Law on KSCSPO’)
(https://www.legal-tools.org/doc/8b71c3/); International Residual Mechanism for Criminal
Tribunals (‘IRMCT’), Statute of the International Residual Mechanism for Criminal Tribu-
nals, 22 December 2010, Article 9(1) (‘IRMCT Statute’) (http://www.legal-tools.org/
doc/30782d/); International Criminal Tribunal for Rwanda (‘ICTR’), Statute of the Interna-
tional Criminal Tribunal for Rwanda [as amended], 8 November 1994, Article 12 (‘ICTR
Statute’) (http://www.legal-tools.org/doc/8732d6/); ICTY, Updated Statute of the Interna-
tional Criminal Tribunal for the former Yugoslavia, 25 May 1993, Article 13 (‘ICTY Statute’)
(http://www.legal-tools.org/doc/b4f63b/); Agreement between the United Nations and the
Lebanese Republic on the establishment of a Special Tribunal for Lebanon (‘STL Agree-
ment’) (https://www.legal-tools.org/doc/e1635d/), Attachment: Statute of the Special Tribu-
nal for Lebanon, 30 May 2007, Article 9(1) (‘STL Statute’) (http://www.legal-tools.org/
doc/da0bbb/); Cambodia, Law on the Establishment of Extraordinary Chambers in the
Courts of Cambodia for the Prosecution of Crimes Committed during the period of Demo-
cratic Kampuchea (as amended), 27 October 2004, Article 10 new (‘Law on ECCC’)
(http://www.legal-tools.org/doc/9b12f0/); Agreement between the United Nations and the
Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 12
April 2002 (‘SCSL Agreement’) (http://www.legal-tools.org/doc/797850/), Attachment 1:
Statute of the Special Court for Sierra Leone, Article 13(1) (‘SCSL Statute’) (http://
www.legal-tools.org/doc/aa0e20/); Agreement between the United Nations and the Govern-
ment of Sierra Leone on the Establishment of a Residual Special Court for Sierra Leo-
ne(‘RSCSL’), 11 August 2010 (‘RSCSL Agreement’), Attachment: Statute of the Residual
Special Court for Sierra Leone, Article 11(2) (‘RSCSL Statute’) (http://www.legal-tools.org/
doc/4768bc/); Rome Statute of the International Criminal Court (‘ICC’), 17 July 1998, Arti-
cle 36.3(a) (‘ICC Statute’) (http://www.legal-tools.org/doc/7b9af9/).
13
ICC Statute, Article 36.3(a), see above note 12; see ibid., Article 36.3(b); Law on KSCSPO,
Article 27(1), see above note 12.
14
Cf. IRMCT Statute, Article 9(1), see above note 12; ICTR Statute, Article 12, see above note
12; ICTY Statute, Article 9, see above note 12; SCSL Statute, Article 13(2), see above note
12.
15
STL Statute, Article 9(1), see above note 12.

in criminal law, including international law and human rights. 16 Naturally

then, there is a legitimate expectation 17 – albeit an unwritten one – that
such highly-qualified judges will comply with equally high standards of
professionalism and conduct, in order to give effect to the very principles
of judicial independence that underpin universal values relating to fair and
independent trials. 18 As will be seen below, the relationship between integ-
rity and accountability is reflected in various international instruments, 19
such as the United Nations (‘UN’) Basic Principles on the Independence of
the Judiciary, 20 which have been endorsed by the UN General Assembly as
setting out the core principles related to the functionality of judiciaries ca-
16
Law on ECCC, Article 10 new, see above note 12; ICC Statute, Article 36.3(b), see above
note 12.
17
This expectation is given credence through the strong presumption in favour of judges satis-
fying these requirements (of impartiality) recognized in the jurisprudence of international
criminal tribunals. See, for example, ICTR, Nahimana v. The Prosecutor, Bureau, Decision
on Request for Disqualification of Judge Pocar, 6 June 2012, ICTR-99-52B-R, para. 9
(http://www.legal-tools.org/doc/c4c5ef/); ICTY, Prosecutor v. Furundžija, Appeals Chamber,
Judgement, 21 July 2000, IT-95-17/1-A, para. 197 (http://www.legal-tools.org/doc/660d3f/);
IT-08-01-A, para. 44 (http://www.legal-tools.org/doc/e414f6/); STL, In the matter of El
Sayed, The President of the Tribunal, Decision on Mr. El Sayed’s Motion for the Disqualifi-
cation of Judge Chamseddine from the Appeals Chamber Pursuant to Rule 25, 5 November
2010, CH/PRES/2010/09, para. 17 (http://www.legal-tools.org/doc/fda41c/); and decisions
of the plenary of judges of the international criminal court see, for example, ICC, Prosecutor
v. Nourain, Presidency, Annex to the Notification of the Decision on the Defence Request
for the Disqualification of a Judge, 5 June 2012, ICC-02/05-03/09-344-Anx (http://www.
legal-tools.org/doc/a15116/).
18
Expounding upon this view in the domestic context, Devlin and Dodek consider the ac-
countability of judges as one of the essential components of ensuring effective judicial inde-
pendence, together with selection criteria, the irremovability of judges, and the provision of
appropriate resources to the judiciary. Richard Devlin and Adam Dodek, “Regulating Judges:
Challenges, Controversies and Choices”, in Richard Devlin and Adem Dodek (eds.), Regu-
lating Judges: Beyond Independence and Accountability, Edward Elgar, Cheltenham, 2016,
pp. 5–11. But see Jeffrey L. Dunoff and Mark A. Pollack, “The Judicial Trilemma”, in
American Journal of International Law, vol. 111, no. 2, April 2017, pp. 225–276, who view
independence and accountability, along with transparency, as the three core values giving
rise to an interlocking series of trade-offs. Ibid., p. 225.
19
Throughout this chapter, the terms ‘international instruments’ and ‘international standards’
are used in a broad sense to denote instruments and standards adopted by States through the
UN General Assembly (‘UNGA’), by international organizations, such as the UN Economic
and Social Council (‘ECOSOC’), and through civil society organizations and initiatives. See
section 27.4. below.
20
UN, Basic Principles on the Independence of the Judiciary, 13 December (‘UN Basic Prin-
ciples’) (https://www.legal-tools.org/doc/rnabsy/).

pable of implementation across all the world’s diverse legal systems and
cultures. 21 The Bangalore Principles, for example, describe ‘integrity’ as an
essential principle to the proper discharge of the judicial office, and empha-
size that a judge shall “ensure that his or her conduct is above reproach in
the view of a reasonable observer”. 22 They also state that “[t]he behavior
and conduct of a judge must reaffirm the people’s faith in the integrity of
the judiciary”. 23 The international standards examined in this chapter show
that this expectation is typically envisaged through the regulation of judges
through the prescription of standards of professional conduct, on the one
hand, and the existence of disciplinary mechanisms, on the other. 24
This leads us to conclude that the second aim for international courts
and tribunals, in order to ensure their integrity, is to strive for transparent
regulatory frameworks capable of ensuring professional and ethical con-
duct standards are consistently observed, applied and enforced. It is not
surprising, then, that the exploration of “individual awareness and integrity
as professionalism” and “institutional integrity measures available to inter-
national courts” are two of the key foci of the Integrity Project. 25 Cumula-
tively, these aims form a vital part of efforts to ensure a robust and trans-
parent system of international criminal justice, comprised of effective and
efficient bodies, capable of optimizing the resources provided to them in
pursuing justice for international(ized) crimes and protecting the funda-
mental rights of accused persons and the interests of victims.
27.3. Judicial Independence and Accountability
American statesman, and one of the founding fathers of the United States,
Alexander Hamilton, famously defended the role of the independent judici-
ary in his essay, Federalist No. 78, declaring:
Whoever attentively considers the different departments of
power must perceive, that, in a government in which they are
separated from each other, the Judiciary, from the nature of its
21
UNGA, Seventh United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, UN Doc. A/RES/40/32, 29 November 1985 (https://www.legal-tools.org/
doc/qwiloh/); UN General Assembly, Human Rights in the Administration of Justice, UN
Doc. A/RES/40/146, 13 December 1985 (https://www.legal-tools.org/doc/qwiloh/).
22
Bangalore Principles, Article 3, see above note 11.
23
Ibid., Article 3.2.
24
See sections 27.4. and 27.5. below.
25
Bergsmo, 2018, pp. 2–3, see above note 6.

functions, will always be the least dangerous to the political

rights of the Constitution, because it will be least in a capacity
to annoy and injure them. The Executive not only dispenses
the honors, but holds the sword of the community. The legisla-
ture not only commands the purse, but prescribes the rules by
which the duties and rights of every citizen are to be regulated.
The Judiciary, on the contrary, has no influence over either the
sword or the purse, no direction either of the strength or of the
wealth of the society, and can take no active resolution what-
ever. It may truly be said to have neither force nor will, but
merely judgment, and must ultimately depend upon the aid of
the executive arm even for the efficacy of its judgments. 26
The pursuit and defence of an independent judiciary in line with this
theory of separation of powers has long since been replicated across the
globe. The principle of judicial independence – entailing respect towards
the judiciary and its fundamental functions, and its freedom from en-
croachment from the legislative and executive arms of government – is
now deeply rooted in many contemporary legal systems and cultures.
While the concept of executive and legislative ‘arms of government’ does
not transpose so neatly to the international arena, 27 we can still view the
separation of the judicial powers from the influence of political pressures
as a cornerstone of independent, impartial and fair international criminal
trials.
At the domestic level, this separation of power serves both the citi-
zens of the State, and the judges. Externally, it promotes the interests and
legitimacy of the State on the international plane. Internally, and if it works
effectively, it promotes a functional judicial system. While the concept of
judicial independence has spread almost universally, including to interna-
tional courts and tribunals, it is frequently prone to misinterpretation, mis-
understanding and confusion, including amongst members of the judiciary.
Indeed, the principle of judicial independence is prone to frequent over-
26
Alexander Hamilton, The Federalist Papers No. 78: The Judiciary Department (available on
the web site of the Congress of the United States of America).
27
Ernst-Ulrich Petersmann, “How to Constitutionalize International Law and Foreign Policy
for the Benefit of Civil Society”, in Michigan Journal of International Law, 1998, vol. 20,
no. 1, p. 13; cf. Dapo Akande, “The International Court of Justice and the Security Council:
Is There Room for Judicial Control of Decisions of the Political Organs of the United Na-
tions”, in International and Comparative Law Quarterly, 1997, vol. 46, no. 2, p. 309–343;
Stefan Talmon, “The Security Council as World Legislature”, in The American Journal of
International Law, 2005, vol. 99, no. 1, pp. 175–193.

statement, especially in the context of conditions of judicial service or

funding of the court system. 28 In reality, judicial independence is intended
to protect the justice system as a whole, the rule of law and public trust in
the judiciary. As former Australian Chief Justice Gerard Brennan declared,
“independence does not exist to serve the judiciary; nor to serve the inter-
ests of the other two branches of government. It exists to serve and protect
not the governors but the governed”. 29 Indeed, Hamilton himself empha-
sized that judges should only hold office “during good behaviour”. 30
In this manner, the defence of judicial independence at international
criminal courts and tribunals serves to protect the judicial functions of the
judge from external influence. In order to perform their duties, judges must
be free from external influence – not only from the executive and legisla-
tive ‘arms of government’, but also from other portions of society: the cor-
porate sector, businesses, individuals and the media. Fairness and impar-
tiality demand not that judges be shielded from criticism or accountability,
but that they are free from fear of any retaliation when performing judicial
functions. Judges must be free to decide cases solely on the basis of the
evidence before them and in accordance with the law, and protected from
the threat of reprisals for the decisions they make. The appearance of this
judicial independence is just as important as the existence of it – as stated
in the well-quoted maxim of former Lord Chief Justice of England, Gordon
Hewart, that “[i]t is of fundamental importance that justice should not only
be done, but should manifestly and undoubtedly be seen to be done”. 31
Judges decide cases between individuals and, not only in the criminal
domain, between individuals and the State. In the international sphere, their
role can extend to adjudicating disputes between States themselves and, in
international criminal law, between individuals and prosecutors of institu-
tions created as, or by, multilateral organizations representing the societal
interests of numerous States or the international community as a whole.
Thus, in order to ensure public confidence that cases are decided impartial-
28
Murray Gleeson, “The Role of the Judge and Becoming a Judge”, National Judicial Orienta-
tion Programme, Sydney, 16 August 1998.
29
Gerard Brennan, “Judicial Independence”, Australian Judicial Conference, Australian Na-
tional University, Canberra, 2 November 1996.
30
Hamilton, 1999, pp. 463–471, see above note 26.
31
England and Wales High Court (King’s Bench Division), R v. Sussex Justices, ex parte
McCarthy, Decision, 9 November 1923, [1924] 1 KB 256, p. 259. See Bangalore Principles,
Article 32, see above note 11.

ly and fairly, the independence of international judges must be protected. In

practice, this protection is granted by ensuring and promoting their inde-
pendence; not to serve judges’ own personal benefit, but to serve the inter-
est of the international public and the various stakeholders of which it is
comprised. 32 The discussion of promoting and protecting the independence
of international criminal law judges in this chapter should be understood in
this context.
Notwithstanding the universality of the underlying principles of judi-
cial independence that exist, when it comes to promoting and protecting
judicial independence of international judges, the systems at different in-
ternational courts and tribunals are far from uniform. 33 Moreover, despite
the inexorable correlation between independence and accountability of
judges having been explored in-depth in relation to national judiciaries, 34
32
Cf. Brennan, 1996, see above note 29.
33
See section 27.4 below.
34
See, for example, Amy B. Atchison, et al., “Judicial Independence and Judicial Accountabil-
ity: A Selected Bibliography”, in Southern California Law Review, 1998, vol. 72, no. 2–3,
pp. 723–810; Paul D. Carrington, “Judicial Independence and Democratic Accountability in
Highest State Courts”, in Law and Contemporary Problems, 1998, vol. 61, no. 3, pp. 79–126;
Francseco Contini and Richard Mohr, “Reconciling Independence and Accountability in Ju-
dicial Systems”, in Utrecht Law Review, 2007, vol. 3, no. 2, pp. 26–43; Consultative Coun-
cil of European Judges (‘CCJE’), Opinion No. 1 on Standards concerning the Independence
of the Judiciary and the Iremmovability of Judges, 23 November 2001 (http://www.legal-
tools.org/doc/ca5224/); CCJE, Opinion No. 3 on the principles and rules governing judges’
professional conduct, in particular ethics, incompatible behaviour and impartiality, 19 No-
vember 2002 (http://www.legal-tools.org/doc/81c8b5/); Devlin and Dodek, 2016, pp. 1–33,
see above note 18; Nuno Garoupa and Tom Ginsburg, “Guarding the Guardians: Judicial
Councils and Judicial Independence”, in The American Journal of Comparative Law, 2009,
vol. 57, no. 1, pp. 103–134; Charles H. Geyh, “Judicial Independence, Judicial Accountabil-
ity, and the Role of Constitutional Norms in Congressional Regulation of the Courts”, in In-
diana Law Journal, 2003, vol. 78, no. 1, pp. 153–221; Hoong Phuon Lee (ed.), Judiciaries
in Comparative Perspective, Cambridge University Press, 2011; Andrew Le Sueur, “Devel-
oping Mechanisms for Judicial Accountability in the UK”, in Legal Studies, 2004, vol. 24,
no. 1–2, pp. 73–98; Carlos Santiso, “Economic Reform and Judicial Governance in Brazil:
Balancing Independence with Accountability”, in VII Congresso Internacional de CLAD so-
bre la Reforma del Estado y de la Adminstración Pública, Panama, 28–31 October 2003,
pp. 1–16; Shimon Shetreet, “Judicial Independence and Accountability in Israel”, in Interna-
tional and Criminal Law Quarterly, 1984, vol. 33, no. 4, pp. 979–1012; Frances Kahn
Zemans, “The Accountable Judge: Guardian of Judicial Independence”, in Southern Cali-
fornia Law Review, 1999, vol. 72, pp. 625–655. The authorities cited in this footnote, and
footnotes 35 and 36 below, are not intended to represent exhaustive lists.

there is very little written on the issue as it relates to international judges. 35

There is less still in the context of international criminal courts and tribu-
nals. 36 Mackenzie and Sands attribute this to the fact that independence is
culture-specific and “it is less apparent what the meaning of independence
and impartiality in the context of the international courts should be”. 37
While that may be true in practice, in principle, the universality of the vari-
ous international instruments regarding judicial independence belies this
assessment or, at the very least, suggests that the reality is more nuanced. 38
The Preamble to the UN Basic Principles, for example, recognizes
that the independence of the judiciary is essential to fully realizing the right
of every person to equality before the law, to the presumption of innocence
and to a fair and public hearing by a competent, independent and impartial
tribunal established by law. These rights are enshrined variously under the
Universal Declaration of Human Rights, 39 the International Covenant on
Civil and Political Rights 40 and, to a lesser extent, the International Cove-
nant on Economic, Social and Cultural Rights. 41 But the UN Basic Princi-
ples also decree that it is a fundamental aspect of judicial accountability
that judges may be subject to suspension or removal for misconduct or rea-
sons of incapacity that render them unfit to discharge their duties. 42
35
See Dunoff and Polack, 2017, see above note 18; Kenneth J. Keith, “Challenges to the Inde-
pendence of the International Judiciary”, International Law Programme Speech Transcript,
Chatham House, 26 November 2014; Kenneth J. Keith, “Challenges to the Independence of
the International Judiciary: reflections on the International Court of Justice”, in Leiden
Journal of International Law, 2017, vol. 30, no. 1, pp. 153–154.
36
See, for example, Michael G. Karnavas, “Judicial Ethics in the International Tribunals”,
drawn from Michael G. Karnavas’s lecture at the ADC-ICTY Twelfth Defence Symposium,
24 January 2014, Paul Mahoney, “The International Judiciary – Independence and Account-
ability”, in The Law and Practice of International Courts and Tribunals, 2008, vol. 7,
pp. 313–349.
37
R. Mackenzie and P. Sands, “International Courts and Tribunals and the Independence of the
International Judge”, in Harvard International Law Journal, 2003, vol. 44, pp. 271, 275.
38
On the academic debate in this context, see Lorne Neudorf, The Dynamics of Judicial Inde-
pendence, Springer, Cham, 2017, pp. 1–9.
39
UN, Universal Declaration of Human Rights, UN Doc. A/RES/217(III) A, 10 December
1948, Article 10 (https://www.legal-tools.org/doc/085437/).
40
UN, International Covenant on Civil and Political Rights, 23 March 1976, Articles 14, 26
(https://www.legal-tools.org/doc/2838f3/).
41
International Covenant on Economic, Social and Cultural Rights, 3 January 1976, Preamble
(https://www.legal-tools.org/doc/06b87e/).
42
UN Basic Principles, Article 18, see above note 20. See also ibid., Preamble.

Indeed, many of the international instruments on judicial independ-

ence enshrine similar principles. The Bangalore Principles, for example,
recognizing that judicial independence is a “pre-requisite to the rule of law
and a fundamental guarantee of a fair trial”, 43 espouse the principle that
judges must be “accountable for their conduct to appropriate institutions
established to maintain judicial standards”. 44 Likewise, the Commonwealth
(Latimer House) Principles on the Three Branches of Government state
unequivocally that the principles of judicial accountability and independ-
ence “underpin public confidence in the judicial system and the importance
of the judiciary as one of the […] pillars upon which a responsible gov-
ernment relies”. 45 These principles are considered in further detail in Sec-
tion 27.4. below. The analysis therein suggests that the existence of disci-
plinary mechanisms, consistent with established standards of judicial con-
duct, are recognized internationally – if not universally – as fundamental to
the independence of the judiciary and to the establishment of conditions
under which justice can be pursued.
Accountability is all the more important in the international context,
considering the effect of immunities which, both conceptually and in prac-
tice, afford wide latitude to protect international judges from criminal and
civil suits. Contrary to some judicial systems at the national level, all inter-
national criminal tribunal judges are afforded immunities protecting them
from criminal prosecutions and civil lawsuits. 46 Although this immunity
can always be waived – usually by the authority responsible for judicial
43
Bangalore Principles, Article 1, see above note 11.
44
Ibid., Preamble.
45
Commonwealth Heads of Government, Commonwealth (Latimer House) Principles on the
Three Branches of Government, November 2003, Article VII(b) (‘Latimer House Principles’)
(https://www.legal-tools.org/doc/c502bd/).
46
See, for example, Law on ECCC, Articles 41, 42 new, see above note 12; ICTY Statute,
Article 30(2), see above note 12; ICTR Statute, Article 29(2), see above note 12; STL
Agreement, Article 11, see above note 12; SCSL Agreement, Article 12(2), see above note
12. In the case of the KSCSPO, see Law on KSCSPO, Article 56.1, see above note 12 and
Netherlands-Kosovo, Agreement between the Kingdom of the Netherlands and the Republic
of Kosovo concerning the Hosting of the Kosovo Relocated Specialist Judicial Institution in
the Netherlands, 15 February 2016, Article 19 (‘KSCSPO Agreement’) (https://www.legal-
tools.org/doc/muyojl/). In respect of the RSCSL, see RSCSL Agreement, Article 10(1), see
above note 12 and UNGA, Convention on the Privileges and Immunities of the United Na-
tions, 13 February 1946, Section 20 (‘Privileges and Immunities Convention’)
(http://www.legal-tools.org/doc/f68109/).

appointments 47 – it serves as a robust safeguard against attempts to destabi-

lize judges when performing legitimate judicial functions. But the exist-
ence of such immunities and the infrequency of their wavier signals the
need for efficient internal oversight mechanisms aimed at enforcing the
ethical principles and conduct standards recognized in the various interna-
tional declarations on the judiciary, judicial ethics, and judicial independ-
ence.
At the national level, the legitimacy and authority of the courts is tied
to their independence. 48 In order to give effect to these fundamental princi-
ples on the international plane, the foundational texts of many international
and regional judicial institutions recognize that judges may only be re-
moved from office in the event of misconduct or incapacity, or when a
judge ceases to fulfil the required conditions for their ongoing membership
of a court or tribunal. 49 But in order to promote and protect judicial inde-
pendence, mechanisms by which accountability can be ensured must be
established. The function of these mechanisms is to ensure that complaints
47
For most international criminal tribunals, this power lies with the UN Secretary-General.
See STL Agreement, Article 11(2), see above note 12; Vienna Convention on Diplomatic
Relations, 18 April 1961, Article 32 (http://www.legal-tools.org/doc/fda998/). In the case of
the KSCSPO, the power appears to be vested with the President. See KSCSPO Agreement,
Article 30, see above note 46, referring to Kosovo, Law No. 04/L-274, On the Ratification
of the International Agreement between the Republic of Kosovo and the European Union on
the European Rule of Law Mission in Kosovo, 23 April 2014, Article 1.2.3, in turn, referring
to Kosovo, On the Status, Immunities and Privileges of Diplomatic and Consular Missions
and Personnel in Republic of Kosovo and of the International Military Presence and Its Per-
sonnel, 20 February 2008, Article 7. In respect of the RSCSL, see RSCSL Agreement, Arti-
cle 10(1), see above note 12, and Privileges and Immunities Convention, Section 20, see
above note 46.
48
Mackenzie and Sands, 2003, p. 275, see above note 37.
49
See, for example, Council of Europe (‘CoE’), European Convention on Human Rights, 4
November 1950, Article 23(4) (http://www.legal-tools.org/doc/8267cb/); Organization of
American States (OAS) General Assembly, Statute of the Inter-American Court of Human
Rights, 1 October 1979, Article 20(1) (https://www.legal-tools.org/doc/3eb97d/); ICC Stat-
ute, Article 46.1, see above note 12; UN, Statute of the United Nations Administrative Tri-
bunal, 24 November 1949, Article 3(3) (https://www.legal-tools.org/doc/fwa4o9/); UN,
Statute of the International Court of Justice, 18 April 1946, Article 18 (https://www.legal-
tools.org/doc/fdd2d2/); UNGA, Administration of Justice at the United Nations, UN Doc.
A/RES/63/253, 24 December 2008, Annex I, Article 4(10) and Annex II, Article 3(10)
(https://www.legal-tools.org/doc/56xnx6/); International Tribunal on the Law of the Sea,
Statute of the International Tribunal for the Law of the Sea (Annex VI of the United Nations
Convention on the Law of the Sea), 10 December 1982, Article 9 (https://www.legal-
tools.org/doc/zlbrua/).

can be raised against judges and that judges are answerable for their actions
to an appropriate authority, in order to ensure that they comply with core
ethical principles and standards of conduct. Indeed, we can say that there is
a positive correlation between judicial accountability, on the one hand, and
effective judicial independence, on the other. In this sense, judicial ac-
countability is one among a number of key concepts central to promoting
and protecting judicial independence. Other such concepts include the
character requirements individuals must meet in order to be appointed to
judicial office in the first place, 50 the requirement that the judiciary be sup-
plied with appropriate resources to enable it to carry out its functions free
from external interference, and the general irremovability of judges. 51
Accountability serves as an agent of strengthening effective, inde-
pendent judiciaries for at least two principal reasons:
1. First, effective regulation is essential to ensure that all users of the ju-
dicial system – including judges themselves – know what is expected
of them, what they can do, and what they cannot do in the performance
of their duties. While this may seem self-evident, the reality of hybrid-
ized international criminal justice is that what may be considered total-
ly acceptable under the domestic legal tradition of one actor may be
considered unethical or improper in another. Insofar as international
criminal courts and tribunals are sui generis, the point must be made
that the creation of these institutions did not in and of itself instil them
with clear judicial ethical standards or professional conduct rules. All
the while, the judges appointed to these tribunals come from disparate
legal traditions, and no sui generis system of judicial ethics was likely
to emerge in a regulatory vacuum organically. Regulation then serves,
first and foremost, as a means of identifying – in a more concrete
manner than the references in foundational texts to ‘highest moral
standards’, ‘impartiality’ and ‘integrity’ – the professional and ethical
conduct standards that judges are expected to uphold.
2. Second, any judiciary is ultimately an arm of government, 52 and judg-
es ultimately perform a civil service, even if their independence makes
50
See Silvia Fernández de Gurmendi, “Judges: Selection, Competence, Collegiality”, in Amer-
ican Journal of International Law Unbound, 2018, vol. 112, pp. 163–167.
51
See Devlin and Dodek, 2016, pp. 5–11, see above note 18.
52
Bathurst, 1996, para. 3, see above note 3.

plain they are not civil servants. 53 It is a legitimate expectation of any

society – including the international community – to know of the ex-
istence of rules defining acceptable conduct of judges and to be confi-
dent that systems are in place to provide effective remedies, in the
event that standards of judicial conduct are not upheld, beyond esoteric
processes designed ad hoc or occurring behind closed doors. When a
judge fails to uphold the high standards expected of them, it should be
clear to those outside of the judiciary that the judge will be held to ac-
count. Indeed, at the domestic level, the traditionally anti-reformist
view that public confidence may be “undermined if every bit of dirty
judicial laundry were aired in public”, 54 have effectively been rebuked.
In concrete terms, then how can society know what to expect from
judges and to what extent judges are really accountable? The codification
of professional conduct and ethical standards represents the most obvious
solution to inform the public, as well as other actors within the judiciary –
including judges themselves – of what is expected, what is tolerated, and
what is not. In the international judicial system, as in domestic systems, it
has long been debated by judges whether the codification of professional
and ethical standards is a necessity. Those against formal regulation argue
that it is never possible – and potentially unwise to attempt – to determine
all of ethical rules and behavioural standards applicable to judges in the
abstract. As a consequence, it is argued that written codes can only ever be
very generic. In truth, however, such limitations need not undermine the
utility of codification. Understanding the boundaries of ethical and profes-
sional conduct of judges necessarily demands that consideration be given
to a host of factors that influence the conduct of judges at the national level,
including international norms, societal values, legal traditions, or even the
extent to which religious morals permeate societal understandings of ap-
propriate judicial conduct. Each of these factors contributes to the formula-
tion of moral and ethical standards that affect the practice of law and the
interactions of courts and society. Because of these disparate influences,
even generic codes of conduct serve to provide beneficial guidance as to
acceptable standards for judges within a specific legal system, to the judi-
ciary and external actors alike. This utility is amplified in the international
53
Ibid., para. 16.
54
Tim Dare, “Discipline and Modernize: Regulating New Zealand Judges”, in Devlin and
Dodek (eds.), Regulating Judges: Beyond Independence and Accountability, Edward Elgar,
Cheltenham, 2016, pp. 293–312, 295.

field. Nonetheless, it is not remarkable to expect that, while still respecting

international norms, it may be legitimate that the application of standards is
tailored according to the culture and legal traditions reflected in each judi-
cial system.
If it is accepted that the codification of ethical standards, despite the
limitations described above, is a beneficial practice, another question arises:
is it possible, or even necessary, to regulate the enforcement of these ethical
rules? Many discussions have been conducted on how to enforce rules on
judges’ behaviour while at the same time guaranteeing that such mecha-
nisms will not be used as tools of political will against judges whose rul-
ings contradict the interests of the executive. 55 Almost thirty-five years af-
ter the adoption of the UN Basic Principles – and going on two-hundred
more since Hamilton’s essay – the balance between the courts and other
branches of government continues to generate tension. 56 It is this continu-
ing tension – an anticipated side-effect of the separation of judicial power
from other arms of government – that is perhaps the strongest argument in
favour of judiciaries taking the lead to ensure public confidence through
transparent accountability mechanisms. 57 Procedures for investigating and,
if necessary, disciplining judges, according to law, thus serve to protect the
interests of the judiciary, executive and legislative authorities, and, most
importantly, society at large.
27.4. International Standards Regulating the Accountability of Judges
27.4.1. Early Efforts to Regulate Judicial Accountability and
Independence
In 1980, UN ECOSOC authorized the Sub-Commission on Prevention of
Discrimination and Protection of Minorities (‘ECOSOC Sub-Commission’),
to appoint Laxmi Mall Singhvi as Special Rapporteur on the independence
and impartiality of the judiciary, jurors and assessors, and the independence
of lawyers. 58 In August of the following year, the Special Rapporteur sub-
mitted to the ECOSOC Sub-Commission draft principles on judicial inde-
pendence that had been formulated by a Committee of Experts hosted by
55
See, generally, Devlin and Dodek, 2016, see above note 18.
56
See Bathurst, 1996, see above note 3.
57
Ibid.
58
ECOSOC, Draft Universal Declaration on the Independence of Justice, E/CN.4/Sub.2/1985/
18/Add.5/Rev.1, 24 August 1987, p. 1 (‘Singhvi Declaration’) (https://www.legal-tools.org/
doc/9pxw6x/).

the International Institute of Higher Studies in Criminal Sciences

(‘IIHSCS’), 59 in Syracuse, Italy (‘Syracuse Principles’). 60 The seven sub-
stantive chapters of the Syracuse Principles cover issues from the definition
of independence of the judiciary; the qualification, selection and training of
judges; posting, transfer and promotion of judges; retirement, discipline,
removal and immunity; working conditions, administrative and financial
arrangements; the role of the judiciary in a changing society; and the inter-
relation between judicial independence and the protection of human rights.
Relevantly, the Syracuse Principles also provide for disciplinary proceed-
ings to be conducted “before a court or board composed of and selected by
members of the judiciary”, 61 removal from office for criminal acts or
“gross or repeated neglect or physical or mental incapacity”, 62 disciplinary
action based upon established standards of judicial conduct, 63 and the dis-
qualification of judges in certain circumstances. 64
The New Delhi Code of Minimum Standards of Judicial Independ-
ence, adopted by the International Bar Association in 1982 (also known as
the ‘IBA Minimum Standards’), 65 is largely analogous to the Syracuse
Principles. In relation to the discipline and removal of judges, it deviates in
providing that, unless a judge requests otherwise, disciplinary procedures
should be held in camera, 66 that disciplinary tribunals under the authority
of the legislature should be “predominantly” composed of members of the
judiciary, 67 and in no uncertain terms, that “[t]he head of the court may le-
gitimately have supervisory powers to control judges on administrative
59
The Committee of Experts was organized jointly by the International Association of Penal
Law, the International Commission of Jurists, and the Centre for the Independence of Judges
and Lawyers.
60
See International Institute of Higher Studies in Criminal Sciences (‘IIHSCS’), “Draft Princi-
ples on the Independence of the Judiciary”, in Reed Brody (ed.), Centre for Independence of
Judges and Lawyers, No. 25–26, p. 59 (https://www.legal-tools.org/doc/p5qixp/).
61
Ibid., Article 13, see ibid., Articles 14–15.
62
Ibid., Article 16.
63
Ibid., Article 14.
64
Ibid., Article 23.
65
International Bar Association (‘IBA’), “Minimum Standards of Judicial Independence”, in
Reed Brody (ed.), Centre for Independence of Judges and Lawyers Bulletin, No. 25–26,
p. 105 (‘New Delhi Code’) (https://www.legal-tools.org/doc/p5qixp/).
66
Ibid., Article 28.
67
Ibid., Article 31.

matters”. 68 The New Delhi Code also specified that, whether or not pro-
ceedings were in camera or public, judgments may be published. 69
The following year saw the adoption of the Universal Declaration on
the Independence of Justice at the First World Conference on the Independ-
ence of Justice in Montreal (‘Montreal Declaration’). 70 Uniquely, the Mon-
treal Declaration was the first instrument to recognize the distinction be-
tween principles applicable to national and international judges, respec-
tively. In respect of removal and discipline of judges, while the provisions
relating to national judges develop upon the Syracuse Principles and New
Delhi Code, 71 those relating to international judges are relatively barren,
providing that judges can only be removed from office by other members
of their court and in accordance with their Statutes. 72 Nominally rejecting
the universality of the principles applicable to domestic judges to interna-
tional judges, the Montreal Declaration also calls for the context-specific
application of conduct rules to ad hoc judges and arbitrators. 73
Although the Syracuse Principles, New Delhi Code and Montreal
Declaration represent international civil society initiatives (albeit with the
heavy involvement of judges from various legal systems), the ideas they
espouse largely inspired other instruments that were created in a multilat-
eral context in the years and decades that followed. Despite their nuances
and the key differences described above, these early texts otherwise remain
remarkably similar in scope and content. While in practical terms, this sim-
ilarity might be attributable to the involvement of key individuals in their
creation, 74 the very fact that the principles were adopted in a range of inter-
national fora speaks to their universal appeal.
68
Ibid., Article 32.
69
Ibid., Article 28.
70
Universal Declaration on the Independence of Justice, 10 June 1983 (‘Montreal Declaration’)
(https://www.legal-tools.org/doc/p6ek6z/).
71
For example, by providing for the presumption of confidentiality of complaints at the initial
stage, providing for the right of appeal, and providing protections for judges serving in
courts that are abolished. Montreal Declaration, Articles 2.32, 2.37, 2.39, see above note 70.
72
Ibid., Articles 1.18–1.19.
73
Ibid., Article 1.20.
74
See Neudorf, 2017, p. 4, see above note 38.

27.4.2. UN System: Towards Possible Universality

The early initiatives described above ultimately contributed to the adoption
of the UN Basic Principles at the Seventh Congress on the Prevention of
Crime and the Treatment of Offenders in Milan in 1985. 75 The latter repre-
sented the first inter-State effort related to the regulation of judges. The UN
Basic Principles were soon endorsed by resolution of the UN General As-
sembly, which also encouraged their implementation. 76 Formulated to as-
sist Member States to secure and promote the independence of their judici-
aries, 77 according to the UN Basic Principles, the independence of the judi-
ciary is an essential element of a functional judicial system which should
“be guaranteed by the State and enshrined in the Constitution or law of the
country”. 78 But if the drafters intended to focus on shielding the judiciary
from the interference of other arms of government, 79 they did not shy away
from establishing internationally recognized standards related to the disci-
pline, suspension and removal of judges from office, in a manner not dis-
similar to the Syracuse Principles of four years prior. 80 Accordingly, the
UN Basic Principles promote equitable adjudication of complaints against
judges, for example: requiring that a complaint made against a judge in
their judicial and professional capacity shall be processed expeditiously
and fairly. 81 Clearly, however, the focus of the provisions relating to the
discipline, suspension and removal of judges is on the protections afforded
to judges against the risk of abuse of process through complaint procedures.
Thus, the UN Basic Principles afford judges the right to a fair hearing, 82
and prescribe that they shall be subject to suspension or removal on one of
two grounds only: “reasons of incapacity or behavior that renders them un-
fit to discharge their duties”. 83 In addition, they provide that “[d]ecisions in
disciplinary, suspension or removal proceedings should be subject to an
75
UN Basic Principles, see above note 20; see Neudorf, 2017, p. 4, see above note 38.
76
See above Section 27.2.
77
UN Basic Principles, Preamble, see above note 20.
78
Ibid., Article 1.
79
See, for example, ibid., Articles 1–7 (Independence of the judiciary), 8–9 (Freedom of ex-
pression and association), 11–14, (Conditions of service and tenure), 15–16 (Professional
secrecy and immunity).
80
See ibid., Articles 17–20.
81
Ibid., Article 17.
82
Ibid.
83
Ibid., Article 18.

independent review”, 84 though the commitment is watered down in the

case of “decisions of the highest court and those of the legislature in im-
peachment or similar proceedings”. 85 In this manner, the Principles unam-
biguously provide for the role of judicial complaints mechanisms but are
cautious not to endorse procedures that might endanger the legitimate pro-
tections of the judiciary. This implicit recognition of the limits of the judi-
cial functions and the balance between judicial freedoms and judicial ac-
countability would go on to underpin the various international standards
that were adopted subsequently.
Similar considerations are evident, for example, in the 1989 Singhvi
Declaration, adopted by the ECOSOC Sub-Commission to assist States in
the implementation of the UN Basic Principles. 86 As to the discipline and
removal of judges, a number of principles in the Declaration are aimed at
protecting judges from political interference. For example, the Declaration
provides that even though the power to remove a judge may be vested in
the legislature by impeachment or joint address, “proceedings for judicial
removal or discipline when such are initiated shall be held before a Court
or a Board predominantly composed of members of the judiciary”, 87
though this is somewhat weaker than the protection envisaged in this re-
gard by the Syracuse Principles. The Singhvi Declaration also affirms the
rule that the removal of judges should be exceptional: “judges shall not be
subject to removal except on proved grounds of incapacity or misbehavior
rendering them unfit to continue in office”. 88 As to the applicable proce-
dure, the Declaration envisages that disciplinary or removal proceedings
must be based upon established standards, 89 guarantee the judge fairness
and the opportunity of a full hearing, 90 and, in going further than the New
Delhi Standards, that judgements rendered in disciplinary proceedings
against judges, whether in camera or public, should be published. 91
84
Ibid., Article 20.
85
Ibid.
86
Singhvi Declaration, p. 1, see above note 58.
87
Ibid., Article 26(b).
88
Ibid., Article 30.
89
Ibid., Article 27.
90
Ibid., Article 28.
91
Ibid., Article 29.

27.4.3. Regional Initiatives

During the 1990s, a number of regional efforts also demonstrated the glob-
al reach of initiatives related to identifying judicial independence and ac-
countability standards. In Europe, the Council of Europe (‘CoE’) adopted a
recommendation on the independence, efficiency and role of judges. 92 The
Recommendation called, inter alia, for States to consider establishing spe-
cial competent bodies under the control of the judiciary for hearing disci-
plinary complaints, including for failures to carry out duties in an efficient
manner, with full respect for the rights enshrined in the European Charter
of Human Rights. 93 Later, in 1998, the CoE adopted the European Charter
on the Statute of the Judge, 94 which, together with its explanatory memo-
randum, proclaims that “[j]udges have no monopoly over miscarriages of
justice” and advocates the role of an independent body to refer complaints
to an appropriate disciplinary body. 95
The initiatives of LAWASIA, an advocacy group for the legal profes-
sion in the Asia-Pacific region, culminated in 1995, with the adoption of
the LAWASIA Beijing Statement. 96 That document recognizes that, tradi-
tionally, some societies had functioned with disciplinary procedures under
the ambit of the legislature, but that in others, this was not appropriate, and
disciplinary procedures under the control of the judiciary should be fa-
voured. 97 It also provides for many of the procedural protections espoused
in earlier initiatives. 98
Commonwealth nations, too, developed principles directed at the ac-
countability of judges. The Latimer House Guidelines, adopted in 1998,
were agreed by representatives of twenty Commonwealth nations. 99 The
92
CoE Committee of Ministers, Recommendation No. R (94) 12 of the Committee of Minis-
ters to Member States on the Independence, Efficiency and Role of Judges, 13 October 1994
(https://www.legal-tools.org/doc/d67e7z/).
93
Ibid., Principle VI(1)–(3).
94
CoE, European Charter on the Statute for Judges and Explanatory Memorandum, 8–10 July
1998, DAJ/DOC (98) 23 (https://www.legal-tools.org/doc/gbx10x/).
95
Ibid., Explanatory Memorandum, para. 5.3.
96
LAWASIA, Beijing Statement of Principles of the Independence of the Judiciary in the
LAWASIA Region, 28 August 1997 (https://www.legal-tools.org/doc/y6gatr/).
97
Ibid., Articles 23–24.
98
See, for example, ibid., Articles 26–29.
99
Commonwealth Heads of Government, Parliamentary Supremacy, Judicial Independence,
Latimer House Guidelines for the Commonwealth, 19 June 1998 (‘Latimer House Guide-
lines’) (https://www.legal-tools.org/doc/c502bd/).

Guidelines concern the separation of powers and ‘trias politica’ at the do-
mestic level and, in relation to the judiciary, echoed the core recommenda-
tions of earlier documents, limiting the grounds for removal of judges, 100
recognizing the legitimate role of independent disciplinary tribunals and of
the chief judge of the courts in disciplinary proceedings, 101 and also provid-
ing for the legitimate public criticism of judicial performance as a means of
ensuring accountability. 102 Importantly, they also called for the adoption of
codes of ethics to be developed and adopted by each judiciary as a means
of ensuring accountability. 103 The Latimer House Guidelines were supple-
mented by the Latimer House Principles, adopted by the Commonwealth
Heads of Government in 2003. The Latimer House Principles recognized
that:
Judges are accountable to the Constitution and to the law
which they must apply honestly, independently and with in-
tegrity. The principles of judicial accountability and independ-
ence underpin public confidence in the judicial system and the
importance of the judiciary as one of the three pillars upon
which a responsible government relies. 104
The Principles called for any disciplinary procedure to be “fairly and
objectively administered”, and prescribed that “proceedings which might
lead to the removal of a judicial officer should include appropriate safe-
guards to ensure fairness”. 105
27.4.4. Judicial Regulation in the Twenty-First Century
Perhaps the most important international instrument regarding judicial ac-
countability is the Bangalore Principles of Judicial Conduct. 106 Two rea-
sons are noteworthy: the duration and breadth of consultations leading to
its adoption – which involved judges from common law and civil law ju-
risdictions, as well as judges of the International Court of Justice and the
UN Special Rapporteur on the Independence of Judges and Lawyers, Dato′
Param Cumaraswamy – as well as the prescriptiveness and detail of the
100
Ibid., Articles VI(1)(a)(i).
101
Ibid., Articles VI(1)(a)(i)–(ii).
102
Ibid., Articles VI(1)(a)(iii).
103
Ibid., Articles V(1)(a).
104
Latimer House Principles, Article VII(b), see above note 45.
105
Ibid.
106
Bangalore Principles, see above note 11.

provisions it contains defining acceptable judicial conduct. The Bangalore

Principles establish standards structured around six core values: independ-
ence, impartiality, integrity, propriety, equality and finally, competence and
diligence. Premised on the supposition that judges are accountable for their
conduct to appropriate institutions established to maintain judicial stand-
ards, 107 the Bangalore Principles do not provide for common values regard-
ing either the operation of accountability frameworks or disciplinary mech-
anisms. Not only did the Bangalore Principles break with the practice of
prescribing requirements for an independent judiciary, but their close focus
on the permissible conduct of judges represented the first internationalized
attempt to define professional and ethical conduct standards for judges. The
universality of these principles should not be understated. They are “seen
more and more as a document which all judiciaries and legal systems can
accept unreservedly”. 108 Indeed, the UN Commission on Human Rights
and ECOSOC each endorsed the Bangalore Principles in 2003 and 2006,
respectively. 109
The Bangalore Principles were followed, in 2010, by the Measures
for the Effective Implementation of the Bangalore Principles of Judicial
Conduct (‘Implementation Measures’), designed “as guidelines or bench-
marks for the effective implementation of the Bangalore Principles”. 110 Di-
vided into two parts, the Implementations Measures set out the responsi-
bilities of both the judiciary and the State. With respect to the latter, the
107
Ibid., Preamble.
108
UN Office on Drugs and Crime, Commentary on the Bangalore Principles of Judicial Con-
duct, 2007, p. 5 (emphasis added). Elsewhere, Appleby, Le Mire, Devlin, Dodek, Dare, and
Cravens note the reluctance of common law jurisdictions (Australia, Canada, New Zealand,
and the United States) to embrace judicial regulation. See Gabrielle Appleby and Suzanne
Le Mire, “The Australian Judiciary: Resistant to Reform”, in Devlin and Dodek, 2016,
pp. 35–54, see above note 18; Sarah M.R. Cravens, “Regulating Judges in the United States:
Concerns for Public Confidence”, in Devlin and Dodek, 2016, pp. 390–407, see above note
18; Dare, 2016, pp. 295–296, see above note 54; Richard Devlin and Adam Dodek,
“‘Fighting Words’: Regulating Judges in Canada”, in Devlin and Dodek, 2016, pp. 76–104,
see above note 18.
109
UN Commission on Human Rights, Independence and Impartiality of the Judiciary, Jurors
and Assessors and the Independence of Lawyers, 23 April 2003, p. 1 (https://www.legal-
tools.org/doc/17afdm/); ECOSOC, Strengthening Basic Principles of Judicial Conduct, UN
Doc. E/2006/INF/2/Add.1, 27 July 2006, para. 2 (https://www.legal-tools.org/doc/yiyqyy/).
110
Measures for the Effective Implementation of the Bangalore Principles of Judicial Conduct
(The Implementation Measures), 22 January 2010, p. 3.

Implementation Measures envisage disciplinary proceedings against judges

“only for serious misconduct”, 111 and contend that:
Conduct that gives rise to disciplinary sanctions must be dis-
tinguished from a failure to observe professional standards.
Professional standards represent best practice, which judges
should aim to develop and towards which all judges should
aspire. They should not be equated with conduct justifying
disciplinary proceedings. However, the breach of professional
standards may be of considerable relevance, where such
breach is alleged to constitute conduct sufficient to justify and
require disciplinary sanction. 112
Additionally, the Implementation Measures propose the establish-
ment of a body for receiving complaints and determining whether they
should then be referred to a specific body vested with the power to disci-
pline judges that is “independent of the legislature and executive, com-
posed of serving or retired judges but which may include in its membership
persons other than judges”. 113 The latter body would conduct proceedings
in accordance with procedures guaranteeing the full rights of defence, in-
cluding appeal. 114 It also recommends publication of the outcome of any
such disciplinary process involving the sanction against a judge. 115
Directed exclusively at international judges, the 2010 Burgh House
Principles on the Independence of the International Judiciary recognize the
particular challenges facing the international judiciary in view of the non-
national context in which they operate, 116 that is, where the trias politica
lens – through which judicial independence is traditionally viewed – is not
directly applicable. 117 The Burgh House Principles attempt to set up a gen-
eral framework for judicial misconduct, compelling each court to establish
rules of procedure to address specific complaints of misconduct or breach
of duty on the part of a judge that may affect independence or impartiali-
111
112
Ibid., fn. 9.
113
114
115
116
Burgh House Principles on the Independence of the International Judiciary, August 2004
(‘Burgh House Principles’) (https://www.legal-tools.org/doc/2cncgo/). See P. Sands et al.,
“The Burgh House Principles on the Independence of the International Judiciary”, in Law
and Practice of International Courts and Tribunals, 2005, vol. 4, no. 2, pp. 247–260.
117
See above note 27.

ty. 118 It also recommends that the governing instruments of the court shall
provide for appropriate measures, including the removal from office of a
judge, 119 and provides not for publication of disciplinary decisions, but
communication of the outcome of any complaint to the complainant. 120
These principles also appear in the Mount Scopus International Standards
of Judicial Independence, first adopted in 2008 and revised subsequently in
2011 and 2012. 121
When compared to the earlier European instruments, the CCJE’s
Magna Carta of Judges, adopted in 2010, is more detailed with respect to
judicial ethics and responsibilities, but less prescriptive in terms of the re-
quirements of disciplinary mechanisms. 122 Perhaps its key contribution to
regulation in this area is advocating for the creation of a Council for the
Judiciary or like body, “itself independent from the legislative and execu-
tive powers, endowed with broad competences” for all matters relating to
the status and organization of judges, that is, including disciplinary
measures. 123 Notably, the Magna Carta of Judges is intended to “apply mu-
tatis mutandis to judges of all European and international courts”. 124
In 2015, the Global Code of Judicial Ethics was adopted in an effort
to clarify standards of ethical conduct for judges and “to afford the judici-
ary a framework for regulating judicial conduct”. 125 Although its provisions
with respect to national judges and concerning ethical standards for inter-
national judges are far more prescriptive than those in the instruments that
preceded it, its provisions related to accountability mechanisms do not fur-
ther build upon the Burgh House Principles and Mt Scopus Standards. 126
118
Burgh House Principles, Article 17.1, see above note 116.
119
120
121
Mount Scopus Standards on the Independence of Judges, 19 March 2008, Articles 26.1–26.4
(‘Mt. Scopus Standards’) (https://www.legal-tools.org/doc/gciwle/).
122
See CCJE, Magna Carta of Judges (Fundamental Principles), 19 November 2010, Articles
18–22 (‘Magna Carta of Judges’) (https://www.legal-tools.org/doc/r7r1c2/). These funda-
mental principles built upon earlier studies of the CCJE in relation to the independence of
the judiciary. See CCJE, 2001, see above note 34; CCJE, 2002, see above note 34.
123
Magna Carta of Judges, Article 13, see above note 122.
124
Ibid., Article 23.
125
Global Code of Judicial Ethics, Preamble, see above note 11.
126
Ibid., p. 14.

Though the need for judicial disciplinary mechanisms is now stressed

in the vast majority of international instruments related to judicial inde-
pendence, there is not yet consensus in practice as to how disciplinary pro-
ceedings should be organized. While several of these instruments provide
for safeguards to protect judges against the improper use of disciplinary
procedures to remove judges from office, and substantial effort has been
made to detail ethical and unethical professional conduct for international
judges, it is far more difficult to discern universally applicable disciplinary
procedures. This is true for key aspects, including who has the authority to
trigger an investigation, the body responsible for conducting investigations
in disciplinary proceedings, and the final arbiter tasked with determining if
a breach of standard has occurred and, if so, the disciplinary sanction to be
applied. Moreover, there is also no clear consensus on the type of sanctions
that should be available. If removal is presented as the sanction of last re-
sort in several international instruments, several other types of sanctions
can be contemplated, such as reprimand, change of functions, or regression.
27.5. Regulating Judicial Conduct at International Criminal Courts
and Tribunals
27.5.1. Litigation as a Means of Ensuring Accountability
The contemporary system of international criminal justice was born with the
establishment of the International Criminal Tribunal for the former Yugosla-
via (‘ICTY’) in 1993, which was followed soon after by the establishment of
the International Criminal Tribunal for Rwanda (‘ICTR’) in 1994. Hybrids of
civil and common law traditions though they were, 127 these ad hoc tribunals,
and the later hybrid courts – the Extraordinary Chambers in the Courts of
Cambodia (‘ECCC’), the Special Court for Sierra Leone (‘SCSL’) and the
Special Tribunal for Lebanon (‘STL’) – lacked any regulatory framework
relating to standards of judicial conduct or oversight of the conduct of judges
reminiscent of those that exist in national systems.
This did not mean, however, that there was no recourse when ques-
tions arose as to the professional standards to which the judges of these tri-
bunals were to be held to account. Two such mechanisms existed:
127
See, for example, Alphons A.A. Orie, “Accusatorial v. Inquisitorial Approach in Internation-
al Criminal Proceedings Prior to the Establishment of the ICC and in Proceedings Before the
ICC”, in Antonio Cassese et al. (eds.), The Rome Statute of the International Criminal Court:
A Commentary, vol. 2, Oxford University Press, 2002, pp. 1439–1495 (http://www.legal-
tools.org/doc/01addc/).

1. The first was that available under Rule 15 of the ICTY Rules of Pro-
cedure and Evidence (‘RPE’), which enabled a party to seek the dis-
qualification of a judge where the judge has “a personal interest or
concerning […] or any association which might affect his or her im-
partiality”. 128 Analogous provisions were incorporated into the rules of
procedure and evidence of the ECCC, 129 the ICTR, 130 the SCSL, 131
and the STL, 132 as well as those of the International Criminal Court
(‘ICC’), 133 the Kosovo Specialist Chambers and Specialist Prosecu-
tor's Office (‘KSCSPO’), 134 the International Residual Mechanism for
Criminal Tribunals (‘IRMCT’), 135 and the Residual Special Court for
Sierra Leone (‘RSCSL’). 136
2. The second was by raising the issue through the course of litigation, as
was done, for example, by appellant Esad Lanžo, who complained in
arguments on appeal before the ICTY, that Judge Karibi-Whyte, the
Presiding Judge at trial, “was asleep during substantial portions of the
trial”. 137
The effectiveness of such mechanisms as a means for adjudicating
judicial conduct or capacity, however, is questionable. 138 This is true in ab-
128
ICTY, Rules of Procedure and Evidence, 8 July 2015, Rule 15 (‘ICTY RPE’) (http://www.
legal-tools.org/doc/30df50/).
129
ECCC, Internal Rules (Rev. 9), 16 January 2015, Rule 34 (‘ECCC Internal Rules’) (http://
www.legal-tools.org/doc/b8838e/).
130
ICTR, Rules of Procedure and Evidence, 13 May 2015, Rule 15 (http://www.legal-tools.org/
doc/c6a7c6/).
131
SCSL, Rules of Procedure and Evidence, 31 May 2012, Rule 15 (http://www.legal-
tools.org/doc/4c2a6b/).
132
STL, Rules of Procedure and Evidence, 10 April 2019, Rule 25 (https://www.legal-
tools.org/doc/qop639/).
133
ICC, Rules of Procedure and Evidence, 9 September 2002, Rule 43 (‘ICC RPE’)
(http://www.legal-tools.org/doc/8bcf6f).
134
KSCSPO, Rules of Procedure and Evidence before the Kosovo Specialist Chambers includ-
ing Rules of Procedure for the Specialist Chamber of the Constitutional Court, 25 August
2017, Rule 20 (https://www.legal-tools.org/doc/opmwoy/).
135
IRMCT, Rules of Procedure and Evidence, 18 December 2019, MICT/1/Rev.6, Rule 18
(https://www.legal-tools.org/doc/n7lau1/).
136
RSCSL, Rules of Procedure and Evidence of the Residual Special Court for Sierra Leone (as
revised), 6 November 2018, Rule 15 (http://www.legal-tools.org/doc/76a01e/).
137
ICTY, Prosecutor v. Delalić et al., Appeals Chamber, Judgement, 20 February 2001, IT-96-
21-A, para. 620. (‘Čelebići Case’) (http://www.legal-tools.org/doc/051554/).
138
See Sands et al., 2005, p. 247, see above note 116.

stracto, as these procedures are only available to the litigating parties, and
thus exclude any prospect of other persons raising complaints regarding
judicial misconduct or incapacity. 139 It is also true in concreto. For example,
while the ICTY Appeals Chamber found that Judge Karibi-Whyte’s con-
duct “cannot be accepted as appropriate conduct for a judge”, 140 there is no
indication of whether any disciplinary action was taken against Karibi-
Whyte. To the contrary, Landžo’s Counsel was chastised for raising this
“opportunistic” ground of appeal rather than addressing the issue during
trial. 141 Indeed, according to the Appeals Chamber, the complaint of Kari-
bi-Whyte’s sleeping was only ever secondary to Counsel’s primary motiva-
tion, namely complaining about Karibi-Whyte’s “lack of judicial tempera-
ment, self-restraint and common decency”, 142 which itself was neither
raised before nor addressed by, the ICTY Appeals Chamber.
139
But, as is inherently recognized in codes of conduct subsequently adopted by international
courts and tribunals, it is not only in-court behaviour or judicial decision-making that ought
to fall under the purview of regulated judicial conduct. See in this section below.
140
Čelebići Case, Judgement, para. 629, see above note 137.
141
Ibid., para. 650. For criticisms, see, for example, Michael Bohlander, “The International
Criminal Judiciary – Problems of Judicial Selection, Independence and Ethics”, in Michael
Bohlander (ed.), International Criminal Justice: A Critical Analysis of Institutions and Pro-
cedures, Cameron May, London, 2007, pp. 375–383 (http://www.legal-tools.org/doc/774cfc/
); Mark S. Ellis, Sovereignty and Justice: Balancing the Principle of Complementarity be-
tween International and Domestic War Crimes Tribunals, Cambridge Scholars Publishing,
Cambridge, 2014, pp. 259–261. While it is true that Judge Karibi-Whyte’s mandate as an
ICTY Judge was not renewed, in the words of Grunstein and Banerjee “it is unclear whether
this was related to his somnolence during the trial”, see Ronald R. Grunstein and Dev
Banerjee, “The Case of ‘Judge Nodd’ and Other Sleeping Judges—Media, Society, and Ju-
dicial Sleepiness”, in Sleep, 2007, vol. 30, no. 5, p. 627. Moreover, the Appeals Chamber did
not find that Karibi-Whyte’s conduct amounted to “serious misconduct or incapacity”,
which if it was considered as a basis for his non-renewal, is equally concerning. Cf. the situ-
ation of Judge Frederik Harhoff, an ad litem judge of the ICTY, whose removal from office
ultimately followed his disqualification, as he was not seized of any other judicial proceed-
ings. Harhoff was disqualified following the decision of a Panel of three judges assigned
under Rule 15 of the ICTY RPE, on the basis of their finding of apprehended bias following
the publication of a letter written by Harhoff, which it considered indicated ‘reasonably ap-
prehended bias in favour of conviction […] further compounded by [his] clear difficulty in
applying the current jurisprudence of the Tribunal’. See ICTY, Prosecutor v. Šešelj, Rule 15
Panel, Decision on Defence Motion for Disqualification of Judge Frederik Harhoff and Re-
port to the Vice-President, 28 August 2013, IT-03-67-T (http://www.legal-tools.org/doc/
5b4aa1/). Whether or not Harhoff’s actions amounted to serious misconduct was not ad-
dressed by the Panel.
142
Čelebići case, para. 658, see above note 137.

Similarly, the ECCC’s equivalent to ICTY Rule 15 came under scru-

tiny when the ECCC Trial Chamber, seized of allegations of Judge Nil
Nonn’s past accepting of bribes, 143 “conceded that ‘[a] pattern of improper
conduct […] may call into question a person’s qualifications to act as a
judge of the ECCC, [but] [n]o relevant mechanisms are provided in the
ECCC Law and Agreement’”. 144 In that case, the ECCC Trial Chamber it-
self noted the limitations of the mechanism enshrined within the ECCC
Internal Rules, finding that “the ECCC cannot confront general questions
of judicial independence and integrity directly, it can [only] ensure that Ac-
cused in proceedings before it benefit from proceedings that are fair and
conducted in accordance with international standards”. 145
While the ICTY Rule 15 and its analogues might be appropriate for
assessing the statutorily required impartiality of judges, it is less appropri-
ate as a mechanism for assessing questions that may arise in relation to the
‘high moral character’ and ‘integrity’ that are a prerequisite to their ap-
pointment. 146
In the case of the ICC, the drafters of the ICC Statute took a broader
approach to addressing questions of judicial conduct and capacity than the
precedent set by the ad hoc tribunals and followed by the hybrid tribunals.
As a result, the ICC Statue provides for a mechanism separate to the dis-
qualification procedure. Under that process, judges – as well as the Prose-
cutor, the Registrar and their respective Deputies – can be removed from
office on one of three grounds: serious misconduct, 147 a serious breach of
statutory duties, 148 or the inability to exercise functions required by the ICC
143
ECCC, Co-Prosecutors v. Chea et al., Ieng Sary’s Application to Disqualify Judge Nil Nonn
Due to his Personal Admission that he has Accepted Bribes and Request for a Public Hear-
ing or in the Alternative Leave to Reply to any Submissions Presented by Judge Nil Nonn in
his Response to this Application, 14 January 2011, 002/19-09-2007-ECCC/TC (https://www.
legal-tools.org/doc/a48970/).
144
Ellis, 2014, p. 261, see above note 141. See ECCC, Co-Prosecutors v. Chea et al., Trial
Chamber, Decision on Ieng Sary’s Application to Disqualify Judge Nil Nonn and Related
Requests, 28 January 2011, 002/19-09-2007-ECCC/TC, para. 9 (‘Nil Nonn case’) (http://
www.legal-tools.org/doc/e3e419/).
145
Nil Nonn case, para. 15 (emphasis added), see above note 144.
146
See above section 27.2.
147
ICC Statute, Article 46.1(a) see above note 12.
148
Ibid.

Statute. 149 Separate provisions in the ICC Statute provide for complaints
relating to, and the imposition of disciplinary measures for, “misconduct of
a less serious nature”, 150 a concept which is defined in the ICC RPE. 151
27.5.2. Codes of Conduct and Accountability Mechanisms
In addition to its regulatory framework, the judges of the ICC were first
among their counterparts at other contemporary international criminal
courts and tribunals to adopt a Code of Judicial Ethics. 152 They did so in
March 2005, some three months prior to the issuance of the first indict-
ments against Joseph Kony and others. 153 By that point, the ICTY and
ICTR had adopted Codes of Professional Conduct for Counsel, 154 but had
not yet taken the step of introducing instruments concerning the profes-
sional conduct of judges. At the ECCC, inspiration appears to have flowed
from the ICC Judicial Code. The Plenary of Judges at the ECCC adopted
its Code of Judicial Ethics in September 2008, 155 some six months prior to
the commencement of the Extraordinary Chambers’ inaugural trial pro-
ceedings the following February. 156
Judicial conduct standards appear to have gained greater attention
towards the end of the decade that followed, as the original ad hoc tribu-
nals prepared to close, and the IRMCT assumed their residual jurisdictions.
In May 2015, the IRMCT adopted its first Code of Professional Conduct
for the Judges of the Mechanism. 157 While the ICTR had closed its doors
by the end of 2014, the trend of codifying judicial ethics was followed by
149
Ibid., Article 46.1(b). With respect to the operation of this complaints mechanism, see, for
example, ICC RPE, Rules 23–32, see above note 133.
150
151
ICC RPE, Rule 25(1), see above note 133.
152
See ICC, Code of Judicial Ethics, 9 March 2005 (‘ICC Judicial Code’) (https://www.legal-
tools.org/doc/383f8f/).
153
ICC, “Kony et al. Case” (available on the ICC’s web site).
154
See ICTY, Code of Professional Conduct for Counsel Appearing Before the International
Tribunal, 22 July 2009, IT/125 REV. 3 (https://www.legal-tools.org/doc/rtgkbb/); ICTR,
Code of Professional Conduct for Defence Counsel, 14 March 2008 (https://www.legal-
tools.org/doc/51efe3/); ICTR, Standards of Professional Conduct Prosecution Counsel, 14
September 1999 (https://www.legal-tools.org/doc/nz7gv4/).
155
ECCC, Code of Judicial Ethics, 5 September 2008 (‘ECCC Judicial Code’) (https://www.
legal-tools.org/doc/5dys4p/).
156
ECCC, “Initial hearing in Case 001” (available on the ECCC’s web site).
157
IRMCT, Code of Professional Conduct for the Judges of the Mechanism, 11 May 2015,
MICT/14 (‘IRMCT Judicial Code’) (http://www.legal-tools.org/doc/23cc92/).

the ICTY in July 2016, 158 and the latter’s code remained in effect until the
institution’s closure at the end of 2017. The STL also followed suit in 2016,
adopting its own Code of Professional Conduct for Judges in September of
that year. 159 As well as defining concepts of independence, impartiality,
integrity, confidentiality and diligence, 160 these ‘ethical codes’ and ‘codes
of conduct’ typically govern conduct during proceedings, public expression
and association, and extra-judicial activity. 161 In this way, they cover the
conduct of judges both inside and outside of the courtroom and their par-
ticular institution. When compared to the Global Judicial Code of Ethics,
however, it is clear that that the instruments adopted at the international
courts and tribunals are the far less prescriptive of the two.
Up to this point, the ICC was the only international criminal court or
tribunal with a formal process for hearing complaints against the judiciary
outside of the litigation context, and the only to provide the possibility of
their removal from office as a disciplinary sanction or in response to prov-
en incapacity. That changed following the first plenary of the Roster of
Judges of the Kosovo Specialist Chambers in March 2018. 162 The KSCSPO
judges adopted a Code of Judicial Ethics for Judges, mirroring the ICC’s
model that, in addition to defining “serious misconduct” and “misconduct
of a less serious nature”, 163 provided for a disciplinary procedure for re-
ceiving, handling and adjudicating complaints against judges. 164 In doing
so, the KSCSPO seems to have spurred a small flurry of activity at other
tribunals. The judges of the IRMCT adopted a revised Code of Professional
158
ICTY, Code of Professional Conduct for the Judges of the Tribunal, 6 July 2016 (‘ICTY
Judicial Code’) (https://www.legal-tools.org/doc/55lsey/).
159
STL, Code of Professional Conduct for the Judges of the Special Tribunal for Lebanon, 27
September 2016, STL-CC-2016-04 (‘STL Judicial Code’) (https://www.legal-
tools.org/doc/oird6k/).
160
ECCC Judicial Code, Articles 1–5, see above note 155; ICC Judicial Code, Articles 3–7, see
above note 152; IRMCT Judicial Code, Articles 2–6, see above note 157; ICTY Judicial
Code, Articles 2–6, see above note 158; STL Judicial Code, Articles 2–6, see above note 159.
161
ECCC Judicial Code, Articles 6–8, see above note 155; ICC Judicial Code, Articles 8–10,
see above note 152; IRMCT Judicial Code, Articles 7–9, see above note 157; STL Judicial
Code, Articles 7–9, see above note 159. The ICTY Judicial Code notably contained no such
clause.
162
KSCSPO, First Report, 2016–2018, March 2018, p. 9.
163
KSCSPO, Code of Judicial Ethics for Judges Appointed to the Roster of International Judges
of the Kosovo Specialist Chambers, 14 March 2017, KSC-BD-01/COR2, Articles 13–14
(https://www.legal-tools.org/doc/wl7m65/).
164
Ibid., Articles 15–23.

Conduct for the Judges of the Mechanism in April 2018, this time incorpo-
rating a disciplinary procedure. 165 For its part, on 1 March 2018, the STL
adopted a Judicial Accountability Mechanism, annexed to its Conditions of
Compensation and Service of Judges, upon the extension of its renewable
mandate. 166
As will be seen in the following section, this trend towards formaliz-
ing regulation of judicial ethics and professional conduct standards 167 has
not been limited to the above internal regulatory documents. To the contra-
ry, the issue of judicial accountability has been recognized on the world
stage, as a core consideration for the future viability of international crimi-
nal justice.
27.5.3. The Paris Declaration: A Vision of the Future? 168
In the autumn of 2017, the National School for the Judiciary (École natio-
nale de la magistrature or ‘ENM’) of France hosted an expert conference
on the topic of the effectiveness of international criminal justice, chaired by
former ICC Judge, Bruno Cotte (‘Paris Conference’). Delegates included
the Presidents of four international criminal courts and tribunals, 169 the
Head of the International, Impartial and Independent Mechanism for Syria,
and the President of the Extraordinary African Chambers.
The Conference resulted in the adoption of the Paris Declaration on
the Effectiveness of International Criminal Justice, consisting of 31 sepa-
rate, though interrelated recommendations focused around the central
themes of predictability (and transparency), expediency, and judicial gov-
165
IRMCT, Code of Professional Conduct for the Judges of the Mechanism, 9 April 2018,
MICT/14/Rev. 1 (https://www.legal-tools.org/doc/5deknw/).
166
STL, Conditions of Service and Compensation of Judges of the Special Tribunal for Leba-
non, 9 February 2018, Annex 2: Procedure Establishing a Judicial Accountability Mecha-
nism.
167
Although a conceptual distinction could be made between judicial ethics (that is, factors
guiding judicial decision-making) on the one hand, and professional conduct standards (that
is, rules of conduct governing the behaviour of judges) on the other, no clear distinction ex-
ists in the various instruments adopted by the ECCC, ICC, ICTY IRMCT, KSCSPO or STL.
Indeed, the ethical codes and professional conduct standards are largely similar, despite the
different lexicon used. For present purposes, this chapter does not seek to distinguish ‘pro-
fessional conduct standards,’ of judges from ‘judicial ethics’ and the terms are used variably,
as complementary or interchangeable.
168
The authors were delegates at the Paris Conference on the Effectiveness of International
Criminal Justice, Paris, 16 October 2017.
169
Namely, ICC, ICTY, KSCSPO and STL.

ernance. The Declaration openly acknowledges that “while international

courts and tribunals must be provided with the necessary resources to fulfil
their mandate, they must also be accountable”. 170 To this end, a number of
recommendations focus on the accountability of international criminal
courts and tribunals and their judges broadly, dealing with issues from the
adoption of codes of conduct, 171 the collection of data about the function-
ing of courts and tribunals, 172 the development of transparent performance
indicators, 173 and the effective auditing of international criminal courts and
tribunals. 174 Of these, a number envisage cross-institutional cooperation.
For instance, Article 28 encourages the collection (and sharing) of statisti-
cal data across international criminal courts and tribunals to identify possi-
ble common challenges and foster the dissemination of best practices,
while Article 29 calls for reflection upon the identification of performance
indicators aimed at making the work of international criminal courts and
tribunals as a whole more transparent, in order to benefit from qualitative
information capable of enhancing procedures and practices.
For present purposes, the most significant suggestion is the call for
the establishment of suitable disciplinary mechanisms. In particular, in em-
phasizing the importance of the impartiality and the dignity of the discipli-
nary process, the Paris Declaration calls for international courts and tribu-
nals to give consideration to establishing an investigative and deci-
sion-making body common to all international criminal courts and tribunals
for the purposes of ensuring standards of judicial conduct are adopted and
respected. 175 The Paris Declaration hints at the form this joint disciplinary
mechanism might take, recommending that, as far as possible, international
courts and tribunals utilize external investigative bodies and entrust disci-
plinary decisions to a panel separate to the plenary of judges of that court
or tribunal. 176
But what motivates this new call to action? The context of the Paris
Conference itself, devoted to increasing the effectiveness of international
criminal justice as whole, lends some indication. Judicial accountability
170
Paris Declaration, Preamble, see above note 7.
171
Ibid., Article 26.
172
Ibid., Article 28.
173
Ibid., Article 29.
174
Ibid., Article 30.
175
Ibid., Article 27.
176
Ibid.

mechanisms are but one tool in an array of potential methods by which to

strengthen the governance of judiciaries of international courts and tribu-
nals and to improve their functionality. They serve to consolidate public
and stakeholder confidence in the belief that the high standards of integrity
expected of international judges are upheld in practice, which in turn,
serves to strengthen confidence in international criminal justice as a whole.
The need for such mechanisms is palpable. As once observed by the former
UN Assistant Secretary-General for Legal Affairs, Ralph Zacklin, speaking
of the ad hoc tribunals, “[t]he decentralization of power and accountability,
coupled with the need to respect judicial and prosecutorial independence,
have been chronic problems”. 177 An independent, joint judicial disciplinary
mechanism presents a meaningful way of strengthening confidence in the
integrity of both individual courts and tribunals and the system of interna-
tional criminal justice as a whole. Symbolically, it would also serve to
demonstrate to the public and stakeholders the authenticity of efforts to en-
sure the highest standards of ethical and professional conduct amongst the
international judiciary, despite international courts and tribunals having
previously lagged behind the development of international standards.
Another motivating factor is the climate of wavering confidence in
international criminal courts and tribunals to deliver what was envisaged of
them, which shows no signs of abating. For instance, in commemorating
the twentieth anniversary of the Rome Conference on the establishment of
the ICC, (former ICTY and IRMCT President) Theodor Meron and aca-
demic Maggie Gardener observed that:
it is […] undeniable that Rome project still falls short of the
expectations of the participants at the groundbreaking confer-
ence in Rome, with their visions of creating [an] international
criminal court […] that is efficient, economic, and fair, and
one that applies a full panoply of human and due rights pro-
cesses. 178
That sentiment was echoed by the United Kingdom’s Legal Adviser
to the ICC Assembly of States Parties (‘ASP’), 179 who went on to argue, in
177
Ralph Zacklin, “The Failings of Ad Hoc International Tribunals”, in Journal of International
Criminal Justice, 2004, vol. 2, no. 2, p. 543.
178
Theodor Meron and Maggie Gardener, “Introduction to the Symposium on the Rome Statute
at Twenty”, in American Journal of International Law Unbound, 2018, vol. 112, p. 155.
179
Andrew Murdoch, “UK Statement to the ICC Assembly of States Parties 17th Session, ICC
ASP, 17th Session”, Gov.uk, 5 December 2018 (available on its web site).

the context of strengthening the credibility of the ICC, that it “surely goes
without saying that the Court must act in accordance with the highest pos-
sible standards of good governance and professionalism”. 180 While nega-
tive perceptions of the credibility of international criminal justice and pro-
posals for reform are neither unique to the judiciary nor particularly new, 181
the prevalence of the phenomenon should not lead to a false assurance that
the problem is benign. One need only recall the forewarning of the Perma-
nent Representative of New Zealand, that “[w]hen a Court loses credibility
in the eyes of a large sector of community opinion, then those with political
and legislative responsibility have a right, and a duty, to act to restore that
credibility and effectiveness”. 182 If the independence of international crim-
inal courts and tribunals is truly valued, it is incumbent upon their judiciar-
ies to welcome changes that ensure that such a threshold of credibility loss
is never crossed.
Merits aside, the Paris proposal raises a number of questions that
would have to be answered before a viable joint disciplinary mechanism
could be established. These range from questions about sustainable funding
models, to issues of competence (for example, how it might be possible
that such a body could investigate and determine allegations of judicial
misconduct across various international courts and tribunals) and even
whether a new joint mechanism could complement, for example, the statu-
tory procedures provided for at the ICC.
Each of these questions are worthy of further discussion and merit
considered debate. The protection of legitimate judicial independence
should feature heavily in future discussions in this regard. One can envis-
180
Meron and Gardener, 2018, see above note 178.
181
See, for example, Antonio Cassese, Report on the Special Court for Sierra Leone Submitted
by the Independent Expert, 12 December 2006 (https://www.legal-tools.org/doc/6tr996/);
Silvia Fernández de Gurmendi, “Enhancing the Court’s Efficiency: From the Drafting of the
Procedural Provisions by States to their Revision by Judges”, in Journal of International
Criminal Justice, 2018, vol. 16, no. 2, pp. 341–361; Open Society Justice Initiative and Coa-
lition for International Justice, “Unfulfilled Promises: Achieving Justice for Crimes Against
Humanity in East Timor”, 2004, pp. 34–45 (http://www.legal-tools.org/doc/06eaf7/); Carsten
Stahn, “The Future of International Criminal Justice”, in Hague Justice Journal, 2009, vol. 4,
no. 3, pp. 257–266; Hans-Peter Kaul, “Construction Site for More Justice: The International
Criminal Court after Two Years”, in American Journal of International Law, 2005, vol. 99,
no. 2, pp. 370–384; Zacklin, see above note 177.
182
Jim McLay, “Report of the International Criminal Court: Statement delivered by H.E. Mr.
Jim McLay, Permanent Representative of New Zealand”, New Zealand Foreign Affairs and
Trade, 31 October 2013 (available on its web site).

age, however, an entity legally separate from any individual court or tribu-
nal bound by procedures consistent with internationally recognized mini-
mum standards. Inspiration might be taken from the procedures applied by
bodies such as the UN Office of Internal Oversight, as a means of ensuring
fair, transparent, investigations of judicial complaints. Disciplinary pro-
ceedings could be determined by disciplinary boards composed of mem-
bers with extensive judicial experience who are shortlisted, selected, or
nominated by the judiciary. All protections of a fair hearing could be guar-
anteed to judges, and fair, consistent and transparent complaints, investiga-
tion and disciplinary processes could contribute to improved public confi-
dence and a greater understanding of the almost unexplored field of inter-
national judicial legal ethics in practice.
There is also impetus for the initiatives on the international stage to
continue. It must be observed that the uniform international standards of
ethics and professional conduct for international judges are comparatively
scarce in detail when compared with standards for national judges. At the
same time, the progressive development of the international standards
demonstrates that there is room and opportunity for international criminal
courts and tribunals themselves to contribute to the establishment of norms.
Representative, round-table conferences, like the Paris Conference, could
take a central role, for example, in formulating a uniform code of conduct
for judges of international criminal courts and tribunals. This would not
only supplement the judicial ethics and conduct codes already in force at
existing international criminal courts and tribunals but could be an essential
step in paving the way for cross-institutional initiatives such as a joint ac-
countability mechanism.
27.6. Conclusion
If effective international criminal courts and tribunals are intended as a key
feature of international criminal justice, it is essential to ensure their proper
functioning and credibility. The legitimacy – if not the very survival – of
these institutions and the contemporary system of international criminal
justice as a whole, depends upon it. Ensuring the accountability of judicial
institutions and the integrity and impartiality of individual judges who hold
office is an essential component of continuing to guarantee fair, free, inde-
pendent trials in accordance with the highest international standards.
International criminal courts and tribunals have recognized this. Alt-
hough standards relating to international judges have developed slower

than those relating to national judges, the ICC, the IRMCT, the KSCSPO
and the STL have each adopted disciplinary mechanisms designed to en-
sure that complaints of misconduct can be raised, heard and adjudicated to
promote accountability without compromising legitimate judicial inde-
pendence. In doing so, these courts and tribunals have recognized the ac-
countability of judicial institutions and personnel as an absolutely essential
component of judicial independence. International justice has both the ca-
pacity and impetus, however, to consolidate efforts to improve effective-
ness, including in the oversight of judicial accountability. If the Global
Code of Judicial Ethics presents model ethical standards applicable to judi-
cial office-holders at international courts and tribunals, the Paris Declara-
tion’s proposal for a joint accountability mechanism could represent the
current gold-standard in ensuring the highest quality of regulation of judi-
cial accountability. As a potential next step, consistent with the develop-
ment of international standards on the independence of the judge, judiciar-
ies in international criminal courts and tribunals should move towards the
development of a more detailed code of conduct, applicable to all of their
judges.
In attempting to secure the long-term credibility and legitimacy of in-
ternational criminal justice, there is impulse for common ethical and pro-
fessional conduct minimum standards applicable to all judges serving in
this field, and for a joint accountability mechanism to ensure they are re-
spected. The Paris Declaration could prove to be the first step in this direc-
tion, yet the proposal for a joint accountability mechanism should not be
considered in isolation. Rather, it should be viewed alongside other pro-
posals for reform and improvement of judicial governance generally. 183
Moreover, calls for reform on the international stage should be considered
in context. Since the beginning of the contemporary era of international
standards of judicial regulation, efforts to strengthen judicial independence
and accountability have developed side-by-side. The development of ethi-
cal and professional standards and minimum guarantees of accountability
rightfully go hand-in-hand with efforts to bolster the independence of the
judiciary, stave off unwarranted encroachment on the exercise of judicial
powers, and improve the quality of justice and the rule of law.
183
See, for example, Fernández de Gurmendi, above note 50, identifying potential improve-
ments in the procedures used to appoint international judges.

28
______
Prosecutorial Language,
Integrity and Independence
Richard J. Goldstone *
28.1. Introduction
Politics plays a crucial role in international criminal justice. It shapes inter-
national criminal law and establishes the institutions of criminal justice.
Indeed, without the politics, there would be no international criminal jus-
tice. The politics is at play both externally and internally with regard to
every such judicial institution. External politics includes the inevitability
that State officials will seek, whether directly or indirectly, to influence de-
cisions made by international criminal courts. Internally, there is the reality
that some judges will attempt, directly or indirectly, to influence the policy
and decisions of the office of the prosecutor. Those forms of political pres-
sures are the reality and the background against which one should consider
the language used by international prosecutors and their integrity and inde-
pendence. In what follows, I will rely primarily on my own experiences as
the first chief Prosecutor of the United Nations International Tribunals for
the former Yugoslavia (‘ICTY’) 1 and Rwanda (‘ICTR’). 2
I would add that the actual and perceived integrity and independence
of international prosecutors are essential not only to the office of the prose-
cutor, but to the court as a whole. Without it, the court will lose critical
support from governments and the prosecutor will lose crucial respect, con-
fidence and trust from the judges. 3
*
Richard J. Goldstone is a retired Justice of the Constitutional Court of South Africa. He
served as the first Chief Prosecutor of the International Criminal Tribunals for the former
Yugoslavia and Rwanda.
1
Established by Security Council Resolution 827, UN Doc. S/RES/827 (1993), 25 May 1993
(http://www.legal-tools.org/doc/dc079b/).
2
Established by Security Council Resolution 955, UN Doc. S/RES/955 (1994), 8 November
1994 (http://www.legal-tools.org/doc/f5ef47/).
3
No. 93 (2018), Torkel Opsahl Academic EPublisher, Brussels, 2018, p. 1 (https://www.
toaep.org/pbs-pdf/93-bergsmo/).

28.2. The Political Pressure on Prosecutors from Outside the

Institution and Contact with Governmental Officials
The circumstances in which I came to be appointed as chief Prosecutor for
the ICTY provides a good illustration of the external politics of internation-
al criminal justice. 4 The United Nations Security Council decided that it
would make the appointment of the chief Prosecutor and that, unusually, its
appointment of the Prosecutor of the ICTY would require consensus be-
tween its members. The practical effect of that decision was to grant an ef-
fective veto power to each of the 15 members of the Security Council, and
not only the Permanent Five. The appointment was to be made on the nom-
ination of the Secretary-General. 5
The first eight nominations made by Secretary-General Boutros
Boutros-Ghali were opposed by one or more members of the Security
Council. They were found unacceptable, according to reports at the time,
because of the nationality or religion of the nominees. These politics of the
Security Council delayed the appointment of the Prosecutor for more than
six months. It ended with my appointment in consequence of newly elected
President Nelson Mandela acceding to a request from the Secretary-
General to support the nomination of a South African as chief Prosecutor.
Boutros-Ghali realised that in the middle of 1994, a nomination supported
by Mandela was not likely to be opposed by any member of the Security
Council. It was that support that led to my rapid appointment by the Securi-
ty Council in July of 1994. 6
The absence of a chief Prosecutor for some eight months after their
appointment caused the judges to feel angry and frustrated at having no
judicial work to do. In the result, when I arrived in The Hague, the judges
were demanding rapid indictments and trials. To this end, they summoned
me to report regularly to plenary sessions held by the judges. Whilst I felt
obliged to respond positively to these summonses, I was acutely aware that
I was required to protect both the integrity and independence of my Office.
There was also the integrity of the judges themselves. They had to be pro-
tected from acquiring information that might result in a conflict of interests
and consequential calls for their recusal. At that early stage, no indictments
4
Compare, in this regard, ibid., p. 2, sect. 3.
5
Statute of the International Criminal Tribunal for the former Yugoslavia (‘ICTY’), 25 May
1993, Article 16(4) (http://www.legal-tools.org/doc/b4f63b/).
6
UN Security Council, Resolution 936 (1994), UN Doc. S/RES/936 (1994), 8 July 1994.

28. Prosecutorial Language, Integrity and Independence
had been issued and there was thus no reason for the judges and Prosecutor
not to confer. That situation changed immediately when the first indict-
ments were issued. The relationship between the judges and the Prosecutor
became more formal. In all of those interactions with the judges, the use of
careful language was essential. The relationship was fraught with the dan-
ger of compromising the independence of the judges and the Prosecutor as
well as the institution as a whole.
Equally important was the use of careful language in relation to
briefings of the media. There was intense public interest in the first truly
international criminal court, and favourable press was highly relevant to
receiving adequate funding from the then cash-strapped United Nations. I
had to present an optimistic face to the public without disclosing sensitive
information relating to the detail or direction of investigations. I had learnt
from my South African experiences that the only safe policy was to say
nothing to journalists ‘off the record’ that might be embarrassing if it came
to be made public. I found that an open and transparent relationship with
journalists was appreciated and received by them with understanding. Sub-
ject to those restraints, I regularly provided the media with background
briefings and, in particular, explained what was to come in the following
days. Only on one occasion did that policy lead to a journalist ignoring an
embargo by using the information prior to a public announcement. In that
exceptional case, the information reported was accurate, but it was hardly
fair to those journalists who had respected the embargo.
No international prosecutor can or should avoid contact with outside
agencies, whether governmental or private. On my appointment as chief
Prosecutor of both the ICTY and the ICTR, I took the view that it was not
appropriate for an international prosecutor’s office to send investigators or
other officers to work in any country without consulting the government of
such country. That applied, in my opinion, notwithstanding that my ap-
pointment had been made by the United Nations Security Council acting
under its peremptory Chapter VII powers. It was the politics of the situa-
tion that dictated a diplomatic approach. To that end, I visited the capitals
of the relevant European countries in the case of the ICTY and African
countries in the case of the ICTR. I met with the respective ministers of
justice and foreign affairs. The response, with one exception, was that my
investigators would be welcome to work in their countries. In most cases, it
was suggested that their names and the details of their visits should be con-

veyed to the relevant Ambassador in The Hague so that the government

concerned could be helpful to my investigators in case of need.
The one exception was the French government. They initially insist-
ed that any interview on French soil, even with a willing witness, was to be
conducted before an investigating magistrate. I explained that this was
quite impractical and would compel me to bring such a witness to The
Hague or to arrange to meet the witness in Brussels. After a number of
meetings with the legal advisor at the Quai D’Orsay, we reached a com-
promise. If the person to be interviewed was a French official, the inter-
view would indeed have to be conducted before an investigating magistrate.
In the case of a non-official, there was no longer a problem.
The approach to the governments was a useful and often a fruitful
opportunity to meet the relevant ministers face to face and open direct lines
of communication that became helpful in the months that followed. I could
furnish many illustrations of those benefits. To refer to one of them: an im-
portant Bosniak witness felt under serious physical threat where he lived in
Bosnia and Herzegovina, and I requested the government of Denmark to
grant protection to the witness and his family. The fact that I had met the
Danish Minister of Foreign Affairs facilitated the speedy consent to my
request. I doubt that I would have been able to achieve that result if the
contacts with the Minister had been solely in exchanges of e-mail messages.
I did not, on any occasion during these many contacts and meetings,
feel that the independence of my Office was directly or indirectly compro-
mised. The ground rules for a new institution in the international communi-
ty had to be laid down from the very outset. I had made it clear more than
once, at press conferences, that any inappropriate approach from any gov-
ernment would forthwith be made public.
The other important government contacts I found necessary related to
the receipt of confidential intelligence information from relevant govern-
ments and especially the United States. I was fortunate to find that the
General Counsel at the Central Intelligence Agency, Elizabeth Rindskopf
Parker, was fully supportive of the work of the ICTY. After many detailed
discussions, we were able to forge a formal relationship between the Office
of the Prosecutor and the government of the United States, providing for
intelligence information to be shared with the Prosecutor. In order to im-
plement that agreement, the Rules of Procedure and Evidence of the ICTY
required amendment to enable the Prosecutor to receive confidential infor-
mation, but only as lead information that could not be used against the in-

terests of any defendant. The information could only be made public with
the express consent of the provider of the information. 7 That rule has been
replicated with regard to the ICTR and the International Criminal Court.
Fortunately, as a United National official, I was co-opted to the dip-
lomatic circuit in The Hague. I found it extremely useful to attend national
day celebrations at the various embassies. I found that these were more
working occasions than solely social. At one point, because of the serious
state of the United Nations finances, all travel by United Nations officials
had been put on hold. This was disastrous for the work of the ICTY, where
travel was crucial to our investigators’ work. I inquired from the finance
office at United Nations headquarters in New York whether we could use
unallocated funds from the ICTY Trust Fund for travel. The curt and un-
specific response was that the funds were not available. That was strange
indeed. At a national day reception, the following day, I found myself
speaking with the Ambassador of Pakistan. I informed him of my problem.
I reminded him that Pakistan had donated USD 1 million to the ICTY Trust
Fund. I informed him that what I had told him was on the record and that I
would appreciate it if he were to request his colleague in New York to in-
quire from the United Nations Secretariat why the Trust Fund could not be
used for travel by ICTY investigators. Whether that request was the cause,
I do not know, but within 24 hours the consent to use those funds was
granted. I would stress, in the context of this book, that the language in
which my request was formulated was important. I was not giving the Am-
bassador information that might in any way compromise the independence
of my Office or of the ICTY.
28.3. Relationship with the United Nations Secretary-General
My earliest discussions at the United Nations were with the then newly ap-
pointed Deputy Secretary-General for Legal Affairs, former Ambassador
Hans Corell of Sweden. I should mention that Hans Corell soon became a
good friend and that friendship continues to the present day. During my
time as a United Nations international prosecutor, Corell, sometimes to my
frustration, refused ever to give me advice. He considered that my inde-
pendence was so central to my mission as chief Prosecutor, that it was not
consistent with that independence for a senior United Nations official to
7
ICTY, Rules of Procedure and Evidence, Rule 70(B) (adopted 11 February 1994, amended 4
October 1994, 30 January 1995 and 12 November 1997) (https://legal-tools.org/doc/
30df50/).

give me advice. Of course, I respected and appreciated his highly princi-

pled approach.
It soon turned out that the idea of independence held by Secretary-
General Boutros-Ghali was a very different and unusual one. Some months
into my term of office, I was requested to visit the Secretary-General in his
office in New York. He quickly came to the point: he had obtained details
of my travel schedules from the ICTY Registrar’s office and he was of the
strong view, he said, that I had been neglecting my duties in The Hague by
traveling too frequently. He added that some United Nations ambassadors
had complained to him that I was too frequently in Washington, D.C. I ex-
plained the need for my travels and added politely but firmly that I would
have to continue with a busy travel schedule. It was not a pleasant meeting.
Apart from his complaint, I objected to his deviously requesting infor-
mation about my travel from the Tribunal Registry in The Hague.
Our difficult relationship came to a head with regard to the indict-
ment of Radovan Karadžić in July 1995. Before announcing that we were
proceeding against the ‘president’ of Republika Srpska and his army chief,
Ratko Mladić, I decided it was necessary to give a few days’ confidential
notice to institutions whose security might be compromised by the an-
nouncement: The United Nations, which had troops in the former Yugosla-
via serving with the United National Protection Force (UNPROFOR); the
United Nations High Commissioner for Refugees, which had investigators
in the field; and the Dutch government, which hosted the ICTY. Their per-
sonnel could have been placed at risk by a United Nations prosecutor tak-
ing action against leading actors in the armed conflicts in the former Yugo-
slavia who were regarded as heroes by the Serb nationalist communities.
Some of the right-wing supporters of Karadžić and Mladić were not astute
in making a distinction between different organs of the United Nations or
indeed of the international community.
The civil head of the United Nations forces in the former Yugoslavia
at the time was Akashi Yasushi. I found Akashi to be a supporter of the IC-
TY who never failed to give me his warm co-operation. It was not a good
time for me to be seen in Zagreb, where Akashi had his office. I explained
that I had important information to convey to him in confidence, and he
generously agreed to meet me in Geneva a few days later. I informed him
that I was sharing the information with him on a ‘need to know’ basis. I
expected that he would share it with the United Nations battalion com-
manders who might wish to take extra safety precautions on the day of the

announcement. He asked if he could share the information with the Secre-

tary-General. I responded that the decision was for him to make. He in-
formed me that he felt obliged to do so.
Some days after the announcement, which received huge media at-
tention, I was again summoned to meet with the Secretary-General. He in-
formed me of his extreme displeasure at the decision to proceed against
Karadžić and Mladić. He was of the view that the peace negotiations then
under way were more important than prosecuting the Bosnian Serb leaders.
His priority was to bring an end to the war that was still raging in the for-
mer Yugoslavia. My actions were calculated, he said, to jeopardise and
possibly put an end to those negotiations. I fully understood his position
and I told him so. However, I stated that my duty and obligation under the
Security Council Statute establishing the ICTY was to bring indictments
for war crimes when the evidence justified so doing. He then informed me
that he considered that it had been my duty to consult him before taking so
important a step. I referred him to the Statute that guaranteed my independ-
ence. I added that, in any event, he had been informed ahead of my an-
nouncement of the then coming indictment. He acknowledged that Akashi
had so informed him. He informed me that he respected my independence
and that is why he had not approached me – I should have approached him!
I responded that it had never occurred to me to consult him. I said that I
assumed he would have advised me to postpone the indictments. He agreed.
I quietly added that I was happy not to have consulted him. Our discussion
ended with him informing me that he had great difficulty in dealing with a
senior United Nations official who was not subject to his orders.
I might add that, unbeknown to either the Secretary-General or me, it
was the indictment of Karadžić that made possible the Dayton meeting and
agreement in November 1995, which indeed brought an end to the war.
Had Karadžić been free to travel to Dayton, the meeting would not have
taken place. Karadžić knew that if he set foot in the United States, he
would be arrested and sent for trial to The Hague. It would not have been
politically possible, some four months after the Srebrenica massacre, for
the leaders of Bosnia and Herzegovina to have met in the same room with
Karadžić.
Then there was a bizarre discussion with the Secretary-General to-
wards the end of 1995. I had been invited to deliver one of the opening ad-
dresses at a ceremony in Nuremberg to mark the fiftieth anniversary of the
Nuremberg Trial of the major Nazi leaders. The proceedings were to take

place in the same courtroom. My host was the Lord Mayor of the City of
Nuremberg. The invitation was extended to my wife as well as a colleague
and his wife. It was arranged that we would fly from Amsterdam to Nu-
remberg on a Saturday morning. On the Wednesday prior to our visit, I re-
ceived a call from the Chef de cabinet of the Secretary-General, Jean-
Claude Aimee. He informed me that the Secretary-General understood that
I was traveling to Nuremberg on the weekend. When I confirmed that in-
formation, he informed me that he had to convey an instruction from the
Secretary-General to the effect that I was not to travel to Nuremberg.
Somewhat shocked, I inquired as to the reason for the instruction. He in-
formed me that he had no idea. I told Mr. Aimee that unless there was a
very good reason for my not going to Nuremberg, I was not prepared to
embarrass either my Office or the Mayor of Nuremberg. I asked to speak to
the Secretary-General. He was in the air, said Aimee, and would be in his
office at about 21:30 CET that evening. I requested Mr. Aimee to inform
the Secretary-General that I wished to discuss his instruction with him. I
gave him the telephone number of our dinner host that evening, the then
President of the International Court of Justice. That evening, the Secretary-
General did indeed call. He confirmed the instruction and explained that
because of the serious state of the United Nations finances, he had had to
cancel travel by all United Nations staff. I informed the Secretary-General
that we were going to Nuremberg as the guests of the City of Nuremberg
and that it would not involve any funding at all from the ICTY or the Unit-
ed Nations. “Oh”, said the Secretary-General, “that is very different. Enjoy
your trip!”. I had shared my problem with the small dinner group assem-
bled. They were as puzzled as I had been and amazed at the response I had
received from the Secretary-General. We agreed that the incident exempli-
fied the manner in which Boutros-Ghali micromanaged the huge United
Nations bureaucracy, and that it was important that my independence al-
lowed me to question instructions from the Secretary-General.
In short, it is necessary for any international prosecutor to have fre-
quent interactions with governments and, in the case of a United Nations
tribunal, with the Secretary-General and other high United Nations officials.
It is crucial in those contacts to be transparent and to use language that is
calculated to make apparent the independence and integrity of the office of
the prosecutor.

28.4. The International Criminal Tribunal for Rwanda

The politics surrounding the establishment of the ICTR were almost as
fraught as those of the ICTY. At the end of the genocide in Rwanda, in the
middle of 1994, Rwanda held a non-permanent seat on the Security Coun-
cil. It requested an international criminal tribunal, along the general lines of
the ICTY, to bring the perpetrators to justice. However, it soon became ap-
parent that the government of Rwanda had in mind a domestic tribunal sit-
ting in Kigali, its capital, rather than a remote institution like the ICTY sit-
ting in The Hague, a substantial distance from the former Yugoslavia. Its
own justice system had been destroyed by the genocide – almost all of its
judges and prosecutors had been slaughtered. The government of Rwanda
wanted an international judicial body as a substitute for its own justice sys-
tem.
However, the Security Council, for understandable reasons, could not
contemplate sending international judges and staff to hold trials in Rwanda.
The ability of the government, let alone the Tribunal, to protect the lives of
its staff would present an insurmountable hurdle. Imagine the position of
judges who might acquit an alleged genocidaire and have thousands of vic-
tims calling for revenge. The Security Council decided to set up the Tribu-
nal in Arusha, in neighbouring Tanzania with the Office of the Prosecutor
in Kigali. The great majority of the witnesses were located in Rwanda and
that is where investigators would have to interview them. This approach of
the Security Council was unacceptable to Rwanda and it withdrew its re-
quest for the establishment of an international tribunal. Notwithstanding
this decision by the government of Rwanda, the Security Council, for its
part, insisted on setting up such an institution. As with the ICTY, it would
use its peremptory powers under Chapter VII of the Charter of the United
Nations. When the resolution was put to the vote, 13 members of the Secu-
rity Council voted in favour, China abstained, and Rwanda cast the single
negative vote. 8
The Security Council also decided that, in order to introduce unity of
practice and procedure, the chief Prosecutor of the ICTY would also be the
chief Prosecutor of the ICTR. So, virtually overnight, I was obliged to set
up an Office of the Prosecutor in Kigali. The politics clearly dictated that I
should meet as soon as possible with the government of Rwanda. I required
their co-operation in setting up my Office in their capital. However, in No-
8
UN Security Council, Resolution 955, 1994, see above note 2.

vember 1994, there were no United Nations funds available for the ICTR.
It was a donation to the United Nations Trust Fund for Rwanda from Swit-
zerland that made it possible for me to visit Kigali in the first week of De-
cember 1994. President Bizimungu and Deputy President Kagame were
welcoming and agreed to assist me in setting up an office. I doubt that they
would have been so accommodating if I had delayed a visit to Kigali.
In all of my dealings with regard to the ICTR, language played a cru-
cial role. The United States was insisting that the word ‘genocide’ should
not be used as that might place on it burdens under the Genocide Conven-
tion. 9 The Rwandan survivors and the government that had put an end to
the killing and violence had no doubt that genocide had been committed.
Until the evidence to establish the commission of genocide became over-
whelming, diplomacy and the prospect of garnering funding for the ICTR
compelled me to speak with great circumspection. I referred to slaughter,
massive war crimes and so forth. I could not afford to antagonise either
side.
On the government side, apart from the physical establishment of an
office with staff including experienced investigators, I required the assis-
tance of the Rwandan police to accompany and guarantee the safety of in-
vestigators and their staff when they travelled around the country. This was
forthcoming, but at a price. The police were tipped off as to the identity of
the witnesses, and frequently they would question the witnesses in the days
after our interviews with them. Fortunately, we were on the same side.
It was difficult to recruit staff prepared to work in the very difficult
circumstances that prevailed in the months after the genocide had come to
an end. Accommodation was at a premium and not very pleasant. For secu-
rity reasons, the United Nations was not prepared to allow families to ac-
company any member of the ICTR staff. We required experts with the abil-
ity to converse in both English and French. The Rwandan government was
not prepared to have French nationals in Rwanda as they regarded France
as having been complicit in the commission of the genocide. So, too, Alge-
rians. Fortunately, we were successful in recruiting top-rate French-
Canadians to work for us in Kigali, including the first head of investiga-
tions.
9
The Convention on the Prevention and Punishment of the Crime of Genocide was adopted
by the United Nations General Assembly on 9 December 1948 as General Assembly Resolu-
tion 260, UN Doc. A/RES/260 (III) (http://www.legal-tools.org/doc/cee5ed/).

Particularly in the early days of the ICTR, the use of careful language
was crucial if the independence and integrity of the Tribunal and the Office
of the Prosecutor were to be recognised and respected. That recognition
had to come from the government of Rwanda, the United Nations and the
global community. The difficulty of my task was substantially eased by the
advice and friendship of the head of the United Nations Mission in Rwanda,
Shaharyar Khan of Pakistan. Ambassador Khan, a former Pakistan Ambas-
sador to France and High Commissioner to the United Kingdom, was a
consummate diplomat who efficiently and helpfully steered me through the
political jungle that then obtained in Rwanda.
Perhaps the most difficult negotiation with Rwanda related to the
transfer to the ICTR of the real architect of the genocide, Théoneste Bago-
sora. He had been arrested in Cameroon and requests for extradition had
been made by both Rwanda and Belgium. The Security Council resolution
and the Statute for the ICTR gave the Tribunal primacy, and I insisted that
the main perpetrator of the genocide should be brought to trial before the
ICTR. When I met with the whole Rwandan cabinet, I made it clear that,
rather than agree to Bagosora being transferred to Rwanda, I would suggest
to the Security Council that the mission of the ICTR be brought to an end.
After a tense and rather unpleasant meeting, the government of Rwanda
conceded. There were no courts then sitting in Rwanda and Bagosora
would likely have been murdered if he had been transferred to the custody
of the Rwandan forces. He was subsequently convicted by the ICTR on
charges including genocide and ultimately sentenced to 35 years in pris-
on. 10 Yet again, appropriate language was crucial both in my dealings with
the Rwandan government and in the public statements and press confer-
ences that followed. It was essential to uphold the independence of the
ICTR and at the same time to avoid, to the extent possible, embarrassing or
alienating the government of Rwanda.
28.5. Civil Society
Non-governmental organisations have played an important role with regard
to international criminal justice. It was their pressure that galvanised West-
ern States during 1993 to support the establishment of the ICTY and later
the ICTR. They publicised the reports of journalists emanating from the
war zones in the former Yugoslavia.
10
ICTY, Prosecutor v. Bagosora and Nsengiyumva, Appeals Chamber, Judgement, 14 Decem-
ber 2011, ICTR-98-41-A (https://legal-tools.org/doc/52d501).

It was civil society that began the successful campaign to have rec-
ognised what, for centuries, had been ignored: the role played by gender-
related crimes in warfare and, in particular, systematic mass rape. Reports
emerged early of gender crimes having been committed in both the former
Yugoslavia and Rwanda. Soon after I arrived in The Hague in August 1994,
I began to receive what became a deluge of letters, many hand-written,
pleading for me to give appropriate attention to the investigation of mass
rape as a method of warfare practised by the Serb forces in Bosnia and
Herzegovina. What impressed me was that the letters were not stereotyped.
They came from women and men in many countries. I was more impressed
than I would have been by a petition signed by many thousands of people. I
decided that all the letter-writers were entitled to a personalised response. I
appointed Patricia V. Sellers, one of the lawyers in my Office, to take care
of gender-related issues, both internal and external. One of her first tasks
was to draft appropriate responses to the many letters. It was important to
acknowledge the importance of the issue that had been raised and to make
it clear that their calls would receive a positive response from the Office of
the Prosecutor.
I also tasked Patricia V. Sellers with ensuring that any gender issues
in our Office were promptly and efficiently investigated and resolved. This
was important in an Office in which the largest department was the almost
all-male Investigations Section. It was difficult in the middle of the 1990s
to find experienced female police investigators who were willing to move
to The Hague to work for an ad hoc Tribunal. Fortunately, there were no
serious issues, and those that did emerge were efficiently and successful
handled by Sellers. It was important that at each monthly meeting of the
whole staff of the Office, I would stress the importance for the gender issue
and make it clear that Sellers was acting on my behalf and with my full au-
thority. On one occasion, it was necessary to reprimand members of the
Investigations Section for telling sexist jokes. I made it clear that how they
behaved in their own homes was their business, but how they behaved in
our Office was my business.
When one of the female judges on the ICTY, Elizabeth Odio Benito
of Costa Rica, raised the absence of a charge of rape in one of the very first
indictments, it was made clear to her that at that time the only reference to
rape in the Statute was to be found in the definition of crimes against hu-
manity. Such crimes required the commission of widespread or systematic
attacks, and that was not a case that we were able to make. Judge Odio Be-

nito suggested that rape be included in grave breaches of the Geneva Con-
ventions. Whatever the demerits of that suggestion, the combined effects of
the push from civil society and from the judges left little doubt that we
were being called upon to give priority to gender crimes. Similar pressure
came from the only female judge of the ICTR, Navi Pillay.
Very quickly, gender-related crimes were included in indictments,
and in the ICTR, Judge Pillay wrote the judgment in which, for the first
time, mass rape was recognised as an act of genocide. 11 The campaign con-
tinued into the debate on the Rome Statute for the International Criminal
Court. The holistic definition of gender crimes to be found in that Statute is
the result. 12
So again, language became all-important in the relationship between
the members of staff of the Offices of the Prosecutor of the ICTY and the
ICTR, and in the relationship between those Offices, the media, civil socie-
ty organisations and the general public.
28.6. Conclusion
I hope that I have been able to demonstrate the importance of language and
its relationship to the integrity and independence of an international prose-
cutor. The politics relating to international criminal justice lies at the heart
of the issues that arise on an almost daily basis. The obligations make it
essential to meet and negotiate with governments, the United Nations, and
non-governmental institutions, including the media.
There are always people who, for good reason or bad, are opposed to
the very concept of international justice. As Morten Bergsmo points out,
they are waiting to expose any inappropriate conduct and to magnify it in
the public domain. 13 The attack by John Bolton, former National Security
Adviser of the Trump Administration, is a case in point. 14 More recently,
similar attacks have been made by the present Secretary of State Pompeo. 15
11
ICTR, Prosecutor v. Akayesu, Trial Chamber, Judgement, 2 September 1998, ICTR-96-4-T
(http://www.legal-tools.org/doc/b8d7bd/).
12
Rome Statute of the International Criminal Court, 17 July 1998, Articles 7(1)(g),
8(2)(b)(xxii), and 8(2)(e)(vi) (http://www.legal-tools.org/doc/7b9af9/).
13
14
See Olivia Gazis, “In first major address, John Bolton attacks old foe”, CBS News, 10 Sep-
tember 2018.
15
See Marlise Simons and Megan Specia, “U.S. Revokes Visa of I.C.C. Prosecutor Pursuing
Afghan War Crimes”, New York Times, 5 April 2019.

It is important not to provide ammunition to opponents of international

criminal justice in general, and the ICC in particular.
Transparency in the conduct of an international prosecutor is essen-
tial. Not only transparency with regard to what might be shared with the
public, but also transparency with regard to those many issues that have to
remain confidential. No less essential is the quality and integrity of the staff
of any international prosecutor’s office, and the mutual trust that must exist
between them and the prosecutor. The success of the institution depends
upon it.

29
______
Integrity and the Preservation of Independence in

David Donat Cattin and Melissa Verpile *
29.1. Introductory Notes: An NGO’s Perspective

This chapter does not intend to address the topic of integrity and independ-
ence of International Criminal Court (‘ICC’) organs from the perspective of
a non-governmental organisation (‘NGO’). However, the democratic gov-
ernance’s features of the NGO that these authors are affiliated with will
address the often-untold criticism concerning the purported lack of ac-
countability, legitimacy and, at times, even integrity of certain civil society
organisations. 1
Parliamentarians for Global Action (‘PGA’) is a political organisation
composed of Members of Parliaments, and it is an NGO with general con-
sultative status to the United Nations (‘UN’) Economic and Social Council.
As of the time of writing, approximately 1,300 individual lawmakers from
*
David Donat Cattin is the Secretary-General of Parliamentarians for Global Action
(‘PGA’). Over the last 20 years, he has worked to promote the universality and effectiveness
of the Rome Statute of the International Criminal Court in approximately 100 countries. He
holds a post-doctorate diploma from the Centre for Studies and Research of The Hague
Academy of International Law (2002), a Ph.D. in Public International Law (2000) from the
Faculty of Law of the University of Teramo (Italy). His writings on international criminal
law appeared on well-known scholarly works, such as Triffterer’s Commentary on the Rome
Statute of the ICC, Nomos; Flavia Lattanzi and William Schabas, Essays on the Rome Stat-
ute of the ICC, il Sirente, vol. I, 1999, vol. II, 2004; and Larissa van den Herik and Carsten
Stahn, The Diversification and Fragmentation of International Criminal Law, Brill, 2012.
He co-edited and contributed to the book in honour of Professor (Judge) Flavia Lattanzi en-
titled International Law and the Protection of Humanity, Brill, 2016. Since May 2012, he
has been Adjunct Professor of International Law at New York University Center for Global
Affairs. Melissa M. Verpile is a senior legal officer of the International Law and Human
Rights Programme at PGA, specifically incorporating international legal standards to do-
mestic legislation to strengthen the rule of law and the protection of human rights. She holds
a Master of Laws (LL.M.) in US and Comparative Law from Fordham University School of
Law and a Master of Public Policy and Development from University Paris Descartes (Paris
V). She is fluent in French, English, Spanish, Italian, Haitian Creole and Portuguese.
1
Jens Steffek and Kristina Hahn (eds.), Evaluating Transnational NGOs: Legitimacy, Ac-
countability, Representation, Palgrave Macmillan UK, Springer, 2010.

137 national and regional legislative bodies are members of PGA. The Sec-
retary-General of PGA heads the Secretariat, based in New York and The
Hague, and is appointed by the Board of the organisation. The Board is
comprised of 15 parliamentarians elected every two years by the PGA In-
ternational Council, the representative body of the global membership
composed of National Groups. The Secretary-General (or the Secretariat)
has a duty to carry out the result-oriented implementation of the organisa-
tion’s strategic plan and vision with integrity and efficiency.
Regarding these elected positions, Board members may not be re-
elected for more than two consecutive terms of two years, while the Secre-
tary-General may not be appointed for more than three terms of three years.
This shows how the leadership of an NGO can be the democratic emana-
tion of its constituency, which demands that service to the organisation be
carried out in line with principles of transparency, effectiveness and ac-
countability. These principles do not substantially differ from those dis-
cussed in the context of public entities, including inter-governmental or-
ganisations. The perspective of an NGO whose leadership is chosen
through a democratic process is not substantially different from the per-
spective of other stakeholders from democratic institutions.
Given that States historically failed to prevent and punish interna-
tional crimes, the global membership of PGA determined that it was neces-
sary to create and support an international legal order in which the exercise
of international criminal jurisdiction would address the impunity gap while
obligating States to exercise their duty to prosecute domestically. This was
discussed in a several debates held during PGA’s Annual Fora and at meet-
ings of its Board and International Council. Such a strong policy framing
the work of PGA has been undertaken under the assumption that the ‘inter-
national rule of law’ is not yet a reality, but a goal to be attained through the
progressive development and codification of international law.
In the framework of the ‘Integrity Project’ of the Centre for Interna-
tional Law Research and Policy (CILRAP) and the International Nurem-
berg Principles Academy, contributors have been invited to reflect on dif-
ferent aspects of the role of the individual in international judicial institu-
tions. In view of the first seventeen years of ICC praxis, this chapter will
try to shed light on the interplay between the notion of integrity and the
maintenance of a core pillar of the judicial mandate, that is, the independ-
ence of judges and prosecutors.

29. Integrity and the Preservation of Independence in International Criminal Justice
It is essential to reflect on this topic in the current international con-

text. Multilateralism is in crisis, there is a growing lack of confidence of
constituents in their institutions, certain powerful countries lay outside the
international accountability system for the most serious crimes of concern
to the international community as a whole, and justice has been elusive to
victims of mass atrocity crimes. Consequently, in this climate of mistrust,
scrutiny is heightened for institutions like the International Criminal Court
(‘ICC’), the first permanent, independent, international court with jurisdic-
tion to investigate and prosecute individuals accused of committing inter-
national crimes.
29.2. Towards the Inception of an International Rule of Law:
The Creation of the Rome Statute of the ICC
In his 2004 Report on the Rule of Law and Transitional Justice in Conflict
and Post-Conflict Societies, the UN Secretary-General defined the rule of
law as
a principle of governance in which all persons, institutions
and entities, public and private, including the State itself, are
accountable to laws that are publicly promulgated, equally en-
forced and independently adjudicated, and which are con-
sistent with international human rights norms and standards. It
requires, as well, measures to ensure adherence to the princi-
ples of supremacy of law, equality before the law, accountabil-
ity to the law, fairness in the application of the law, separation
of powers, participation in decision-making, legal certainty,
avoidance of arbitrariness and procedural and legal transpar-
ency. 2
This comprehensive definition has been promoted by the parliamentary
membership of PGA before 1998, the year the Rome Statute of the ICC
was adopted. Indeed, the vision of the organisation is to contribute to the
creation of a rules-based international order. The construction of an interna-
tional rule of law is an ongoing process, whereby there is an established
system of public international law characterized by a decentralized and hor-
2
The rule of law and transitional justice in conflict and post-conflict societies: Report of the
Secretary-General, UN Doc. S/2004/616, 23 August 2004 (https://www.legal-tools.org/doc/
77bebf). On 30 April 2004, PGA organized a roundtable with States’ representatives and UN
officials to provide input to the drafting of this definition. See PGA, Annual Report 2004,
p. 19.

izontal system of law enforcement. 3 The international law system is based

on the concept of equality of States and characterized by the lack of separa-
tion of powers, insofar as States concentrate powers and functions that are
institutionally attributed to the legislative and executive governmental
branches at the domestic level. The Rome Statute ‘sub-system’ is a self-
contained system that reproduces the features of the judiciary in the domes-
tic rule of law, as it is based on the principle of equality of all individuals
before the law, which lies at the heart of the exercise of State power within
effective and functioning legal systems. 4 In this sense, the Rome Statute
constitutes a major innovation in global affairs and is an active step to-
wards the idea of an international rule of law.
In order to fully achieve the establishment of an international rule of
law, key institutions, including the ICC, face enormous external challenges.
Twenty-two years after the adoption of the Rome Statute, there are not only
external obstacles but serious internal challenges that undermine the insti-
tution and its legacy. One of the fundamental challenges is the perceived
lack of integrity of the institution and its proceedings, which is a self-
inflicted wound.
29.3. The Statutory Requirement of Integrity: The Mere Application
of the Rome Statute?
The notion of the individual is central to international criminal law. The
Rome Statute includes in its general principles of law that of individual
criminal responsibility, 5 and its preamble affirms that the object and pur-
pose of the treaty is to put an end to impunity for “the most serious crimes
of concern to the international community as a whole” in respect of the in-
3
Fragmentation of international law: Difficulties arising from the diversification and expan-
sion of international law, UN Doc. A/CN.4/L.682, 13 April 2006, p. 246, para. 486 (https://
www.legal-tools.org/doc/dda184): “A key point made in this study is that normative conflict
is endemic to international law. Because of the spontaneous, decentralized and unhierar-
chical nature of international law-making - law-making by custom and by treaty - lawyers
have always had to deal with heterogeneous materials at different levels of generality and
with different normative force.”
4
For a description of the Rome Statute as a self-contained system, see David Donat Cattin,
“Decision-making in the International Criminal Court: Functions of the Assembly of States
Parties and Independence of the Judicial Organs”, in Flavia Lattanzi and William Schabas
(eds.), Essays on the Rome Statute of the International Criminal Court-volume II, il Sirente,
2004, pp. 69–84.
5
See Rome Statute of the International Criminal Court, 17 July 1998, Article 25, Part 3 (‘ICC
Statute’) (https://www.legal-tools.org/doc/e5faa8/).

dividual. Moreover, the Statute creates a system of norms that essentially

applies to individuals (accused persons and victims) and is substantially
implemented by individuals as organs (namely the Judges and the Prosecu-
tor, 6 albeit nominated and elected by States). It does not seem unusual that
the ICC constitutive charter would indicate professional requirements and
those pertaining to the character of officials of an international judicial
body, given this prominent responsibility to humankind.
Integrity may refer to the behaviour of an individual who adheres to
moral and ethical principles, which are reflected in legal norms (for exam-
ple, fair and impartial trial). In the context at hand, this adherence to a set
of moral or ethical principles is to be understood as the application of the
highest standards and best practices both in the conduct of professional du-
ties and in the behaviour of court officials wielding the powers of a crimi-
nal court, which can, inter alia, deprive an accused and/or convicted person
of personal liberty during the exercise of their duties. In this sense, and for
the purposes of this chapter, the authors retain the definition of ‘integrity’
presented by Morten Bergsmo in his policy brief as a concept often used in
connection with “high moral character”. 7
Both concepts are found in Articles 36 and 42 of the Rome Statute
respectively, regarding the qualifications, nomination and election of judg-
es as well as the principles attached to the Office of the Prosecutor (‘OTP’)
and a fortiori the qualities expected of its officials. ‘Integrity’ and ‘high
moral character’ are legal concepts closely linked to those of probity and
independence, which is a pre-condition for impartiality. As in any domestic
or international judicial institution, independence is quintessential to justice.
The ICC Judges are bound by the Rome Statute provisions to appropriately
apply the Statute and other sources of law listed in Article 21, with full
independence, regardless of any political preference or external influence.
The organs of the ICC have significant jurisdictional power, which implies
great responsibility. Hence the importance of having judges at the Court
who are adequately competent and display qualities intrinsic to a high mor-
al character. To answer the question posed in the title of this section, the
correct application of the Rome Statute provisions by judges during the
Court’s proceedings safeguards the integrity of the ICC. Court officials
6
All the organs of the ICC as defined in ibid. Article 34 consist of individuals.
7
tools.org/doc/e550f7).

who correctly apply the Rome Statute display a level of competence that
protects the institution from external attacks on the soundness of its deci-
sions. In the Rome Statute, integrity seems to refer to competence linked to
the professional responsibility of the judges and Prosecutor as well as to
the fact that these individual organs shall be – and perceived to be – incor-
ruptible and impartial in all situations and cases before them.
29.4. The Preservation of Independence and Integrity at the ICC
Despite its Assembly of States Parties (ASP)
The Rome Statute established a system which, notwithstanding its weak-
nesses, deserves to be protected, effectively implemented, and, when useful
and appropriate, reviewed, reformed and improved. To do so, all stakehold-
ers, including civil society organisations, should strive to reduce the influ-
ence of politics in the conduct of prosecutorial and judicial affairs, as much
as the reality allows for. Actors, including PGA, have a propensity to call
for criticism of the ICC on issues that have now become apparent to inter-
national law practitioners. However, caution is essential: safeguarding the
Rome Statute system has become a pressing matter, and criticism should be
delivered in a constructive manner.
Integrity is a central component of complementarity in the sense that
the ICC is a ‘court of last resort’ where States are unable or unwilling to act
to genuinely investigate and prosecute individuals allegedly responsible of
committing international crimes, which may be a question of national in-
tegrity. When situations of inability or unwillingness arise, it means that
there is a disintegration of the State or bad faith on the part of its authorities,
which may result in ‘sham justice’ or inertia. In the face of these situations,
which are not uncommon in the twenty-first century, we can no longer let
impunity reign at the international and domestic levels.
To achieve the goal of effectively fighting impunity, ICC organs must
be credible, effective and independent. Integrity is, therefore, a pre-
condition of the Court’s effective operations. The effective realization of
the object and purpose of the Rome Statute is to be understood as integral
to that exercise of integrity and independence.
The Rome Statute explicitly set a requirement to preserve the inde-
pendence of the judges from the influence of the executive branch of gov-
ernment, as “[j]udges shall not engage in any activity which is likely to in-
terfere with their judicial functions or to affect confidence in their inde-

pendence”. 8 Preserving the independence of ICC judges also means re-

specting the separation of powers to avoid conflicts of interest. On 18 Feb-
ruary 2019, when Judge OZAKI Kuniko of Japan, a member of the Cham-
ber trying Bosco Ntaganda, conveyed to her peers that she may have to re-
sign as a “full-time judge” 9 because she had been appointed as the Japanese
Ambassador to Estonia, this constituted a serious breach of her fiduciary
duties to the ICC. This also fuelled Court detractors who argued that the
institution is not impartial (following a similar rationale to the legal meta-
phor of the fruit from the poisonous tree to argue that the decisions of the
Court would also be tainted by the lack of impartiality). On 4 March 2019,
a plenary session of the ICC Judges on the matter concluded “that it was
clear that the prohibitions in Article 40(2) of the Statute did not apply in the
concrete circumstances, […] that Judge Ozaki’s independence would not
be undermined by assuming the role of Ambassador of Japan to Estonia”. 10
Such finding by the majority is inherently problematic and could under-
mine the independence of the ICC unless remedied. Such a remedy rescued
the Court as a result of the public scrutiny that followed the above-cited
decision. In April 2019, Judge Ozaki resigned from her diplomatic post in
Estonia, and, in June 2019, the plenary of the Judges and the Appeals
Chamber dismissed the defence’s motion for the disqualification of the
judge. 11
This controversy is emblematic of the approach to integrity and in-
dependence within the Rome Statute system, given that the entire issue
would not have even emerged if the State Party of the nationality of the
judge in question had not appointed a sitting judge to an executive position
of government. An ambassadorial appointment of this nature would not
have been even imaginable within a domestic jurisdiction, and it reveals
the ‘original sin’ committed by States that nominate career diplomats for
judicial positions at the ICC, supported by the practice of other States that
voted for this type of candidates.
8
ICC Statute, Article 40, to be read in the framework of Part 4, see above note 5.
9
International Criminal Court (‘ICC’), The Prosecutor v. Bosco Ntaganda, Decision on your
request of 18 February 2019, Internal Memorandum, 19 March 2019, ICC-01/04-02/06
(https://www.legal-tools.org/doc/5a27d1).
10
Ibid., p. 6, para. 14.
11
ICC, Prosecutor v. Bosco Ntaganda, The Presidency, Notification of the Decision of the
Plenary of Judges on the Defence Request for the Disqualification of Judge Kuniko Ozaki
from the case of The Prosecutor v. Bosco Ntaganda, 20 June 2019, ICC-01/04-02/06-2355
(https://www.legal-tools.org/doc/d7252b).

States Parties should be fully aware of the object and purpose of the
Rome Statute, which is – as the Romans used to say, ‘repetita iuvant’ – “to
put an end to impunity for the most serious crimes of concern to the inter-
national community as a whole”, in accordance with the Preamble to the
Statute. Yet, some stakeholders of the Court, including States Parties to the
Rome Statute, may forget this object and purpose and focus on the national
interests of their country in their relations with the Court. Another scenario,
albeit less common, is that diplomatic personnel interfacing with the ICC
as an international organisation may give precedence to their personal
agendas over a common agenda to protect the integrity of the Rome Statute
system. Such personal considerations are legitimate; however, they do not
justify any departure from the standards outlined in the Rome Statute. The
level of commitment required to exercise a judicial function at the ICC is
higher than the one we may be witnessing in some instances today. It is
imperative to recall that 123 States Parties have joined this accountability
system, and one of the roles and responsibilities of the ASP is to adopt
measures that ensure the protection of the integrity and independence of the
Court.
29.5. Reconciling Ideals and Reality: A Functional Approach
Public international law practitioners recall vividly the process and the
principled ideals underlying the creation of the ICC, echoed in the Pream-
ble to the Rome Statute. Twenty-two years later, this project to prevent and
punish the perpetrators of genocide, crimes against humanity, war crimes
and the crime of aggression is under attack, by States Parties and non-
States Parties alike. In the framework of a politically intricate global con-
text, the international community needs to adjust its course.
If the ICC issues an arrest warrant against former President Omar Al
Bashir, accused of five counts of crimes against humanity, two counts of
war crimes, and three counts of genocide, 12 and the warrant fully satisfies
the legal requirements, all actors of the international community and, in
particular, representatives of ICC States Parties should be aware that they
are under the obligation to refrain from ‘shaking hands’ with Al Bashir, a
fugitive from justice. Yet, the 2018 proceedings on this prominent case be-
fore the Appeals Chamber revolved around issues (primarily raised by Jor-
12
See ICC, Prosecutor v. Omar Hassan Ahmad Al Bashir, The Appeals Chamber, Judgment in
the Jordan Referral re Al-Bashir Appeal, 6 May 2019, ICC-02/05-01/09 OA2 (https://
www.legal-tools.org/doc/0c5307).

dan and the rather non-ritual and unusual amici curiae, the League of Arab
States and the African Union 13) that are part of the body of international
law since the Allied powers issued the 1943 declaration in Moscow. Ac-
cording to the declaration, the leaders of Axis powers did not have immuni-
ty from prosecution if an international jurisdiction concluded that the evi-
dence against them proved their individual responsibility for international
crimes, as enshrined in the 1945 London Charter, ratified by all members
of the international community at the time. Therefore, the debates before
the ICC Appeals Chamber should not have revolved around Jordan’s obli-
gation to arrest Al Bashir. On 6 May 2019, the ICC Appeals Chamber con-
firmed the ICC Pre-Trial Chamber II’s decision regarding the fact that Jor-
dan failed to comply with its obligations under the Rome Statute by not
arresting Al-Bashir and surrendering him to the ICC while he was on Jor-
danian territory attending the League of Arab States’ Summit on 29 March
2017. Despite the determination of lack of co-operation, there was no con-
sequence for Jordan at the ASP level or at the level of the UN Security
Council, which referred the Darfur situation to the ICC pursuant to resolu-
tion 1593 on 31 March 2005, given that Jordan was deemed to be construc-
tively engaging with the ICC.
Dissent is a key tool to make advancements in any institutional
framework, including the Rome Statute system, and uncritical support may
be analogous to a ‘kiss of death’ and be as detrimental to the system as the
above-criticized failure of some States Parties to enforce the arrest warrants
against Omar Al Bashir when he was the President of Sudan. NGOs who
supported and continue to support the implementation of the Rome Stat-
ute’s mandate have often made critical assessments of the ICC organs’ per-
formance at various stages of its institutional development.
For example, when the first ICC Prosecutor presented to States Par-
ties, NGOs and other stakeholders the OTP’s strategy for ‘focused investi-
13
An amicus curiae is ‘a friend’ of the Court, providing legal advice to the Judges in a gratui-
tous, free and independent manner in order to help the jurisdictional organ to fulfil its com-
plex mandate. While individual academics or practitioners advising the Court ‘pro bono
causa’ can fulfil adequately the role of amici curiae, it is questionable whether their input
may be equated to the one provided by academics or practitioners hired by an international
organization, which is paying these jurists in order to pursue and advance the official poli-
cies of the organization. It is hereby submitted that the role and locus standi of amici curiae
before the ICC should be reserved only to individual friends of the Court, who are not moti-
vated by the interest of a client, but only by their personal interest to assist the judges in
their interpretation of the Rome Statute and other sources of applicable law under Article 21.

gations’ during the early years of his mandate, PGA expressed serious con-
cerns. The rationale for ‘focused investigations’ hinged on the determina-
tion that ‘Milošević-like trials’ were not desirable for the ICC. It is the view
of the authors that the complexity of the Milošević ‘mega-trial’ did not rep-
resent a negative model, regardless of its procedural outcome, due to the
extreme gravity and complexity of the crimes for which a head of State or
government should be brought to justice. In fact, the concept of ‘focused
investigations’ may not be desirable in most situations and cases falling
under the ICC’s jurisdiction, given the need to investigate atrocity-type
crimes in a satisfactory manner, which entails the need to investigate their
contextual elements (for instance, the widespread or systematic attack
against any civilian population characterizing the notion of crimes against
humanity). It must be stressed that the PGA representative expressed con-
cerns regarding the idea of ‘focused investigation’ since the first consulta-
tions between NGOs and the OTP, and before the commencement of the
early ICC proceedings.
A few years later, the pre-occupation stemming from the policy of
the first Prosecutor of the Court was in some regards assuaged by the poli-
cy adopted by the second Prosecutor. The inclination to try to conduct rela-
tively fast and representative (focused) investigations, to be followed by
focused prosecutions and adjudications, did not bring about fast and fo-
cused criminal proceedings, as illustrated by the cases The Prosecutor v.
Thomas Lubanga Dyilo and The Prosecutor v. Germain Katanga. As such
proceedings developed, NGOs expressed other concerns to the OTP regard-
ing evidence-related matters, including methods of evidence collection and
digital and technologically derived evidence, as well as the excessive reli-
ance on witness evidence. These concerns have been partially addressed by
the second Prosecutor in her OTP policies.
But the most serious problem of integrity of the judicial process is
associated with the issue of competence of the prosecutorial and judicial
organs of the Court. As identified by one of the authors of this chapter, this
concerns, for example, the unsound decision of the pre-trial and trial cham-
bers in the cases of the Kenyan situation to continue issuing summons to
appear voluntarily in the courtroom against all accused, including the then
Deputy Prime Minister Kenyatta and Member of Parliament Ruto. In meet-
ings with NGOs and consultations with the OTP and representatives of the
Court’s chambers, one of the present authors highlighted the Rome Stat-
ute’s provisions requiring the issuance of an arrest warrant. Indeed, this

relates to when the accused is either threatening to reiterate crimes or

commit new crimes or is at risk of escaping or is posing threats to the in-
tegrity of evidence (including threats to the safety, security, wellbeing and
privacy of victims and witnesses). Even in the face of an agreement be-
tween the Prosecutor and the defence on the voluntary appearance of the
accused, the relevant chamber could have proprio motu transformed the
summons to appear into a warrant of arrest, including an order to remain in
detention in a safehouse in the ICC’s host State. Former UN Under-
Secretary General for Legal Affairs, Hans Corell, expressed similar con-
cerns. 14
Kenyatta and Ruto forged an unexpected alliance when they were
travelling between The Hague and Nairobi. They called it “Jubilee Coali-
tion” and, after every appearance at the Court, they went back home as
candidates for the presidency and vice-presidency, presenting themselves at
times as the victims of a neo-colonial Court against African leaders, and,
other times, chanting the role of the law-abiding citizens who respect court
orders and defend themselves against allegations while accepting to be
treated as every other individual ‘equal’ before the law. Their propaganda
efforts proved successful as, in March 2013, they resulted in presidential
election victory while they were accused persons of crimes against humani-
ty before the ICC. When they assumed power, they launched an unprece-
dented State-driven campaign to destroy the ICC’s credibility, making use
of the State apparatus. Assisted by extremely effective defence counsel
teams, the two accused succeeded in obtaining a decision to halt proceed-
ings against them. In the OTP’s view, this outcome was the consequence of
their actions to threaten and attack witnesses and victims, and tamper with
the evidence that the Prosecutor had disclosed during the proceedings.
If the Prosecutor’s allegations are genuine, how could the relevant
Court organs have prevented this failure? The answer might be found in the
recommendations made by NGOs, including PGA, well before Kenyatta
and Ruto won the presidential elections, namely, to apply the Rome Statute
provisions and transform the summons to appear voluntarily into valid ar-
rest warrants. When there is a risk for the integrity of evidence, including
the testimony of witnesses who may disappear, the ICC Pre-Trial Chamber
has the ability to “provide for the protection and privacy of victims and
14
See Hans Corell, “Challenges for the International Criminal Court”, in International Judi-
cial Monitor, Winter 2014.

witnesses, the preservation of evidence, the protection of persons who have

been arrested or appeared in response to a summons, and the protection of
national security information”. 15 These are grounds for transforming a
summons to appear into an arrest warrant. In the Situation in the Republic
of Kenya, neither the Prosecutor nor the judges carried out their judicial
duties effectively under the Rome Statute to protect witnesses under Article
68 – which is applicable to all stages of the proceedings 16 – and prevent
offences against the administration of justice. The unintended and indirect
result of this situation was that the National Alliance candidate Uhuru Ken-
yatta backed by the Jubilee Alliance won the Kenyan presidential elections
with 50.05 per cent on 4 March 2013. This case revealed many of the short-
falls of the Rome Statute system.
As illustrated above, NGOs play a critical role in safeguarding the
Rome statute system by pointing to deficiencies and lack of confidence in
ICC proceedings stemming from a lack of competence, integrity or inde-
pendence of its organs, as well as from deficiencies of the ASP and its
Member States.
As in 2002–06, in 2018–19 the ICC was confronted with the vision
of John Bolton, former US Under-Secretary of State for Arms Control and
International Security Affairs from 2001 to 2004 and Ambassador to the
UN from August 2005 to December 2006 under President George W. Bush,
and President Trump’s National Security Advisor from April 2018 to Sep-
tember 2019. Bolton supported the Iraq War in 2003 and, closer to our time
and topic, Bolton stated:
on the eve of September 11th, I want to deliver a clear and un-
ambiguous message on behalf of the president of the United
States. The United States will use any means necessary to pro-
tect our citizens and those of our allies from unjust prosecu-
tion by this illegitimate court. We will not cooperate with the
ICC. We will provide no assistance to the ICC. We will not
join the ICC. We will let the ICC die on its own. After all, for
all intents and purposes, the ICC is already dead to us. […].
15
ICC Statute, Article 57, Part 5, see above note 5.
16
See David Donat Cattin, “Article 68: Protection of Victims and Witnesses and their Partici-
pation in the Proceedings”, in Otto Triffterer and Kai Ambos (eds.), Commentary on the
Rome Statute of the ICC, third edition, Beck/Hart Publishers/Nomos, 2015, pp. 1686–1687.

[T]he International Criminal Court unacceptably threatens

American sovereignty and US national security interests. 17
Bolton considered the ICC to be illegitimate because he defined it as
‘a supranational court’ that ‘threatens US sovereignty’. Fake news! All of
us have the duty to protect the integrity of the Rome Statute and explain to
Bolton that there is no supranational institution here with overarching pow-
ers of any kind. The ICC is an international, not supranational, court, which
depends on the monopoly of the use of force by States, which are required
to carry out its orders, requests and decisions.
29.6. Ailments Stemming from the Functioning of the ICC Are Not a
Fatality
Antonio Cassese, a giant of international law and jurisprudence, opened the
doors of The Hague to international justice at a time when nobody believed
that the International Criminal Tribunal for the former Yugoslavia would
have had an impact. Judge Cassese was the first president of the ad hoc
Tribunal, while Judge Richard J. Goldstone was its first prosecutor. When
the ICC became a permanent fixture of international law and was saluted
as “a gift of hope to the future generations”, 18 several individuals, who
were more interested in their individual careers than the principles and
norms of international criminal law and justice that the Rome Statute em-
bodies, managed to join the Court. Whereas the Tribunal started as a rather
utopian project, the ICC commenced its operations on solid foundations,
which inevitably attracted personnel and elected officials seeking solid em-
ployment.
Some detractors of the Court, including Bolton, accused the ICC of
not being accountable. But how can this court be unaccountable if the ASP
has the possibility, unknown in most national systems, to “remove from
office” its highest officials? The ASP is a political body with many pre-
rogatives of different natures. The ASP is a legislator because it can amend
the Statute; it is an administrator with executive powers, as it approves the
17
John Bolton, Protecting American Constitutionalism and Sovereignty from International
Threats, 10 September 2018, Address to the Federalist Society in Washington, D.C. (https://
www.legal-tools.org/doc/84c2b4/).
18
See Kofi Annan’s statement at the 18 July 1998 ceremony held at the Campidoglio, City
Hall of Rome, reproduced in UN Press Release. Secretary-General says Establishment of In-
ternational Criminal Court is Gift of Hope to Future Generations, UN Doc. SG/SM/6643-
L/2891, 21 July 1998 (https://www.legal-tools.org/doc/e7c55e).

budget; and, it has oversight prerogatives. With a vote by two-thirds, the

ASP can ‘fire’ a judge, on the basis of a recommendation issued by at least
two-thirds of the judges. More significantly, the ASP can remove the Pros-
ecutor from office simply with a vote of 51 per cent, provided that such
decisions are motivated on legal grounds under the Rome Statute (for ex-
ample, the Prosecutor is liable of miscarriage of justice).
The main difficulty making accountability work lies in the fact that
the ASP is not performing some of its functions. It never set-up a commit-
tee to determine disciplinary measures, nor did it set-up a standing commit-
tee with hired experts in the field to tackle issues. Although there is a func-
tioning Internal Oversight Mechanism, this spear is not enough to deal with
major issues. The ICC is accountable to a system, but actors of the system
have not performed at the level indicated in the Rome Statute. The final
report of the Independent Expert Review is an important step forward, but
it is up to the Assembly to take relevant action within the framework of its
pivotal statutory mandate. 19
29.7. Moving Forward to Protect the Integrity of the Rome Statute
PGA commemorated the twentieth anniversary of the Rome Statute by or-
ganizing a forward-looking conference in the Sala della Protomoteca, in
Campidoglio (Rome). 20 This event took place at the initiative of the Vice-
President of the European Parliament with portfolio-responsibility for hu-
man rights and democracy (Fabio Massimo Castaldo, MEP), and was host-
ed by the Mayor of Rome. The conference gathered distinguished repre-
sentatives of the three branches of power of the Italian State, PGA mem-
bers from the European and Dominican Republic Parliaments, ICC judges,
legal experts, NGO representatives, members of the press, academics and
students. All stakeholders agreed that one of the main problems of the
Court relates to the lack of competence of its officials, which often trans-
lates into lack of efficiency and effectiveness.
One of the proposed solutions advocated by PGA to improve the
Court’s overall performance is a reform of the system of nomination and
election of the judges and the Prosecutor. Articles 36 to 44 of the Statute
19
See Independent Expert Review, Independent Expert Review of the International Criminal
Court and the Rome Statute System: Final Report, 30 September 2020 (https://www.legal-
20
PGA, “Conference on the Commemoration of the 20th Anniversary of the Statute of the
International Criminal Court”, 23 July 2018.

have not been fully implemented and, notwithstanding all the efforts to dif-
ferentiate the elections for the highest ICC officials from those of other in-
ternational organisations, States Parties have not yet ensured that only the
best candidates apply to judicial positions at the ICC. Within the frame-
work of nomination processes for international judicial institutions, a se-
conded judge of the European Court of Human Rights (‘ECtHR’) presented
a study on the correlation between the ECtHR’s impressive increase in
productivity derived from the reforms of the system of judicial nomination
and election. Reforms in the same vein as those of the ECtHR are needed
to professionalize and depoliticize the nomination process and, albeit to a
lesser extent, the election process of the ICC Judges. During the conference,
Judge Marc Perrin de Brichambaut rightly noted that ICC judges are elect-
ed by States and that one could not eliminate that element of legitimacy
from the system. As much as jurists like the idea of an independent body,
the Rome Statute system makes ‘full’ independence difficult to achieve.
However, States can take measures to increase the transparency of the pro-
cess, which will increase the faith and the integrity of the ICC.
In this respect, PGA has advocated for States to propose at the ASP a
resolution on enhanced procedures for the nomination of judicial candi-
dates. The resolution should include several concrete measures: (1) The
publicity of the calls for applications to become a candidate in each country
as a precondition for valid nominations; and (2) the binding nature of opin-
ions issued by the Advisory Committee on Nominations of Judges.
These two measures appear to be simple and they may not require an
amendment to Article 36 of the Rome Statute, which can be interpreted as
containing a minimum standard of qualifications and characteristics of a
valid judicial nomination, whereby nothing is provided in respect of the
domestic procedure to achieve nominations. One of the PGA proposals,
reflected in a non-paper submitted by Liechtenstein to a relevant Working
Group of the ASP set up in New York during 2019, regarded the possibility
for States to have confidential consultations with the Advisory Committee
on Nominations. As such, States would receive appropriate input in case
the Committee would make a determination that a candidate proposed by a
State would not comply with the requirements of competence, integrity and
‘high moral character’ under the Rome Statute. Even if the stand-alone res-
olution adopted by the 2019 ASP reinforces the role of this Advisory
Committee, the proposal was not accepted by some States, which used and
abused the argument that the process of nomination is a ‘State-driven’ pro-

cess in order to avoid to self-impose a public procedure to attract the best

possible judicial candidates for the ICC. In a similar vein, a few States re-
jected the Liechtenstein proposal for merit-based, pre-established criteria
for the selection of national nominees through open and public calls for
proposals, and the Working Group did not decide through a majority vote.
Hence, the lack of unanimity and the search for ‘consensus’ drove
the ASP to the lowest common denominator, now reflected in the resolution
on the review of the procedure for the nomination and election of judges. 21
Therefore, this ASP resolution falls short of the PGA recommendations to
ensure that States impose on themselves a merit-based, pre-established and
transparent procedure at the national level (Open Call for Nominations,
aforementioned) to be carried out by each State to produce a ranking-list
headed by the best possible candidate. The list would have been transmitted
to the Advisory Committee on Nominations for its independent assessment.
Several elements of the PGA proposal were reflected in proposals tabled by
Liechtenstein and the UK that received significant support from States in
the ASP Working Group. However, a few determined States managed to
impede consensus on the text. The matter was not open to a vote within the
Working Group and the ASP itself, and an agreement on the text was found
on few improvements concerning the functioning of the Advisory Commit-
tee on Nominations. This decision-making process suggests that the ‘dip-
lomatic method’ is one of the main ‘enemies’ or impediments of the inter-
national justice system, which should be supported by an ASP that should
decide on the basis of the democratic method.
Preserving the Rome Statute system means protecting the advance-
ments we have made since World War II to protect the rule of law and the
human rights of vulnerable populations. The supremacy of the law should
not be a controversial principle before domestic or international jurisdic-
tions. The Rome Statute created the ICC as a court of last resort in a rather
complex system. We have an enormous challenge to do all that is in our
power to uphold the wise and immortal words of the Chief Prosecutor for
the United States Army at the Einsatzgruppen Trial, Mr. Benjamin B.
Ferencz: “Never give up hope, never stop trying to make this a more hu-
mane world […]. The time is now, and the place is here”.
21
ICC, Assembly of State Parties, Resolution on the review of the procedure for the nomina-
tion and election of judges, 6 December 2019, ICC-ASP/18/Res.4 (https://www.legal-
tools.org/doc/bswpis).

30
______
Integrity and Independence:

Common Standards and
Uneven Cost of Implementation
Adedeji Adekunle *
30.1. Introduction
Integrity and independence are key qualities required of persons appointed
as the Prosecutor and Judges of the International Criminal Court (‘ICC’).
Both Articles 36 and 42 of the Statute of the ICC 1 refer to persons of “high
moral character” and emphasize independence and impartiality. These qual-
ifications are reinforced by the undertaking in Article 45 of the Statute, to
enter into their respective duties impartially and conscientiously as well as
the elaboration of separate codes of ethical conduct for judges of the
Court, 2 the Office of the Prosecutor (‘OTP’) 3 and the staff of the Court. 4
These codes – for example, the Code of Conduct for the OTP – un-
derscore the importance of impartiality and independence as fundamental
attributes of the office. This chapter examines whether, and if so, to what
extent account should be taken of the diverse background of staff in evalu-
*
Professor Adedeji Adekunle is a Senior Advocate of Nigeria and Visiting Fellow of the
National Human Rights Institute of the Nigerian Human Rights Commission. He was Direc-
tor General of the Nigerian Institute of Advanced Legal Studies (‘NIALS’) until May 2019.
A former Special Adviser to Nigeria’s Attorney General and Minister of Justice on various
aspects of criminal justice administration. He was Secretary of the 2004 Law Revision
Committee. He has authored a Guide to Judicial officers on Nigeria’s Administration of
Criminal Justice Act 2015 and several other monographs. The author acknowledges with
gratitude the assistance of Joke Adediran and Bola Omojola, both promising researchers in
the International Law Department of NIALS.
1
Rome Statute of the International Criminal Court, 17 July 1998, Articles 36 and 42 (‘ICC
Statute’) (http://www.legal-tools.org/doc/7b9af9/).
2
ICC, Code of Judicial Ethics, 2 January 2005 (‘ICC Code of Judicial Ethics’) (https://
www.legal-tools.org/doc/383f8f/).
3
ICC, Code of Conduct for the Office of the Prosecutor, 5 September 2013 (‘ICC Code of
Conduct for the OTP’) (https://www.legal-tools.org/doc/3e11eb).
4
ICC, Code of Conduct for Staff Members, 4 April 2011 (https://www.legal-tools.org/doc/
75f9db).

ating a case of non-compliance. 5 First, it matters that concepts like “integri-

ty” and “impartiality” are not just seen as necessary components of a jus-
tice framework, but also that there is sufficient understanding of what they
connote in the context of an institutional framework and what consequenc-
es follow a breach. 6 Evenness and objectivity in enforcement are just as
important as adopting an ethics code. Therefore, to avoid unfairness, inter-
national civil servants and high officials in international courts must have a
sufficient understanding of what the concepts mean by contextualizing
them within the framework of their beliefs and norms.
Secondly, while it is no doubt important to have a universal under-
standing of ethical concepts, the reality is that this is hardly the case as in-
dividual understandings of what these concepts mean may vary. During the
international conference on ‘Integrity in International Justice’, Ambassador
Paschke observed, “the UN staff represents, on the whole, a peculiar mix of
diverse attitudes and underlying ethics”. 7
In that case, it becomes necessary to set institutional pathways to
clearly illustrate what will not be tolerated and provide mechanisms to pre-
vent such conduct.
This is not to encourage a dilution of objective standards even if
pressures or the cost of compliance differ. It, however, requires a deeper
assessment of the different backgrounds and cultures of international offi-
cials and the fashioning of mechanisms to highlight objective standards and
ensure widespread awareness and counselling of how to identify and deal
with pressures to depart from these standards.
Such pressure can be brought to bear on the integrity and independ-
ence of international officials directly (where the official or the interest ex-
erting the pressure is the direct beneficiary) or indirectly (official acting for
5
It has been suggested that the ambiguity produced by this confluence of legal traditions and
culture in international courts may be significant, and it cannot be dispelled by an assumed
“judicial instinct”. See Brandeis Institute for International Judges, “Toward the Develop-
ment of Ethics Guidelines for International Courts”, in Brandeis Institute for International
Judges, Authority and Autonomy: Defining the Role of International and Regional Courts,
Brandeis University, Waltham, MA, 2003.
6
No. 93 (2018), Torkel Opsahl Academic EPublisher, Brussels, 2018 (http://www.toaep.org/
7
Karl Theodor Paschke, “On the Efforts to Uphold Standards of Integrity Through the Work
of the United Nations Internal Oversight Services”, CILRAP Film, 2 December 2018
(https://www.cilrap.org/cilrap-film/181202-paschke).

30. Integrity and Independence:
Common Standards and Uneven Cost of Implementation
other interests (States)). The pressure may also be political, economic, cul-
tural or even historical. While all international justice personnel subscribe
to a uniform code and are expected to suppress their subjective prejudices
in the discharge of their duties, this is easier said than done when external
challenges to their independence are presented.
30.2. Ethical Gaps in the Prosecutorial Function of the Court
Recent revelations about the conduct of Luis Moreno-Ocampo, the first
ICC Prosecutor, in office and also thereafter, have provoked discussions on
the effectiveness of the integrity requirements and safeguards, particularly
for the OTP. 8 It is no secret that whereas a draft code of conduct had been
elaborated for the OTP, it was only after the election of Fatou Bensouda as
the second ICC Prosecutor in 2012 that an ethics code for the Office was
adopted. 9
It may well be that the lateness in coming of the Code had a pro-
found effect on the conduct of Ocampo and some of his staff, as demon-
strated by a series of judicial disapprovals over some decisions of the OTP
in relation to charges brought against Thomas Lubanga. The latter was
charged for war crimes under Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the
ICC Statute, namely the enlistment and conscription of children into the
Union des Patriotes Congolais and the Forces Patriotiques pour la Libéra-
tion du Congo in connection with the internal conflict in the DRC.
These unfortunate incidents 10 betrayed profound integrity gaps on the
part of the OTP and a preoccupation with a ‘winning at all costs’ mentality
even if this amounted to an abuse of the process of court.
In the first case, the Prosecutor had improperly sought to shield ex-
culpatory material from the defendant by invoking a limited power to enter
into confidentiality agreements with information-providers, under Article
8
demic EPublisher, Brussels, 2017 (http://www.legal-tools.org/doc/41b41a/). It has also been
observed that a fallout of the first 15 years when the ICC was more mission oriented than
values driven is its weak culture of institutional integrity. See Brigid Inder, “Conformity,
Leadership and the Culture of Integrity”, CILRAP Film, 1 December 2018 (https://
www.cilrap.org/cilrap-film/181201-inder).
9
See above note 3.
10
For an extensive discussion of these incidents as well as others See Milan Markovic, “The
ICC Prosecutor’s Missing Code of Conduct”, in Texas International Law Journal, 2011, vol.
47, p. 201.

54(3) of the Statute. The Court criticized the prosecutor’s routine recourse
to Article 54(3)(e) for obtaining a wide range of materials under the cloak
of confidentiality, in order to identify from those materials evidence to be
used at trial. In the words of the Court:
This is the exact opposite of the proper use of the provision,
which is, exceptionally, to allow the prosecution to receive in-
formation or documents which are not for use at trial but
which are instead intended to “lead” to new evidence. The
prosecution's approach constitutes a wholesale and serious
abuse, and a violation of an important provision which was in-
tended to allow the prosecution to receive evidence confiden-
tially, in very restrictive circumstances. The logic of the pros-
ecution's position is that all of the evidence that it obtains
from information-providers can be the subject of Article
54(3)(e) agreements. 11
In the Court’s view, the Prosecution had incorrectly used Article
54(3)(e) when entering into agreements with information-providers, with
the consequence that a significant body of exculpatory evidence which
would otherwise have been disclosed to the accused is to be withheld from
him, thereby improperly inhibiting the opportunities for the accused to pre-
pare his defence.
In the second case, the Prosecutor had declined to comply with the
Trial Chamber’s order to disclose the identity of an intermediary to the de-
fence, citing grave security and safety concerns. The Court took a dim view
of this and observed that:
The Prosecutor has chosen to prosecute this accused. In the
Chamber’s judgment, he cannot be allowed to continue with
this prosecution if he seeks to reserve to himself the right to
avoid the Court’s orders whenever he decides that they are in-
consistent with his interpretation of his other obligations. In
order for the Chamber to ensure that the accused receives a
fair trial, it is necessary that its orders, decisions and rulings
11
ICC, Situation in Democratic Republic of the Congo, The Prosecutor v Thomas Lubanga
Dyilo, Trial Chamber, Decision on the consequences of non-disclosure of exculpatory mate-
rials covered by Article 54(3)(e) agreements and the application to stay the prosecution of
the accused, together with certain other issues raised at the Status Conference on 10 June
2008, 13 June 2008, ICC-01/04-01/06-1401 (http://www.legal-tools.org/doc/e6a054/).

are respected, unless and until they are overturned on appeal,

or suspended by order of the Court. 12
On yet another occasion, the Court had to warn the prosecutor when
he resorted to the media and misrepresented proceedings in the Lubanga
case, by predicting a long jail term for Lubanga based on the testimonies of
“courageous and credible witnesses” of the prosecution. 13 Subsequently,
the Prosecutor himself authored an editorial where he misrepresented the
decision of the Trial Chambers, which had authorized the issue of arrest
warrants against Al Bashir, the Sudanese leader charged for war crimes, in
a way portraying that Al Bashir had actually been convicted. 14 While these
events seem to have drawn more attention to the OTP, the overall dampen-
ing effect on confidence is evident. To what extent can these unhappy inci-
dents be attributed to the absence of a code for the OTP? Put another way,
could the existence of a code have prevented these cases of indiscretion?
What role or influence is wielded by a code of ethics in such an office? In
Markovic’s view, the lack of an ethics code by the ICC imposed “conflict-
ing obligations” on the ICC Prosecutor, as seen in the above instances. He
concludes that the conflicting obligations were resolved in ways that have
undermined the ICC’s credibility and diminished confidence in the Court. 15
30.3. Uniform Standards of Integrity and Ethics Code
It should be noted that the diversity of cultures and legal traditions, which
is a feature of many international organizations, including the ICC, and
which invariably instructs the need for a standard uniform code is not neu-
tralized by the mere existence of a code. In fact, it is this diversity and the
conflicts inherent in the duties of the OTP and Judges that give life to the
ethical standards. Markovic, for example, had observed that because of the
differences in legal and social backgrounds among OTP attorneys, different
12
ICC, Situation in Democratic Republic of the Congo, The Prosecutor v. Thomas Lubanga
Dyilo, Trial Chamber, Redacted Decision on the Prosecution’s Urgent Request for Variation
of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Pro-
ceedings Pending Further Consultations with the VWU, 8 July 2010, ICC-01/04-01/06-
2517-Red (http://www.legal-tools.org/doc/cd4f10/).
13
ICC, Situation in Democratic Republic of the Congo, The Prosecutor v. Thomas Lubanga
Dyilo, Trial Chamber, Decision on the press interview with Ms Le Fraper du Hellen, 12 May
2010, ICC-01/04-01/06-2433 (‘ICC Lubanga du Hellen interview Decision’) (http://
www.legal-tools.org/doc/3b613a/).
14
Discussed in Markovic, 2011, p. 230, see above note 10.
15
Ibid., pp. 201 and 211.

attorneys might have different perspectives of their work and interpreta-

tions of the provisions of a code of conduct. 16 He further emphasized the
uniqueness of the OTP when compared with adversarial prosecutorial sys-
tems when he observed that the role of the ICC Prosecutor is more in ac-
cordance with the civil law tradition, which, thus, sets the establishment of
truth as a Prosecutor’s ultimate goal. 17
While the prescription of codes serves to provide a general ethics
guide, understanding and forestalling the diverse challenges to integrity
and impartiality that can confront officials of the Court is required in order
to take proactive measures to prevent unethical behaviour. Judges of the
Court and high officials of the OTP are required to exhibit impartiality and
high moral character in the performance of their duties. Article 40 of the
ICC Statute, in particular, provides that Judges shall be independent in the
performance of their functions and shall not engage in any activity that is
likely to interfere with their judicial functions or to affect confidence in
their independence. Similar obligations on the staff of the OTP exist under
Article 40, which provides that staff of the Office shall not seek or act on
instructions from any external source and also specifically obliging the
Prosecutor not to engage in any activity, which is likely to interfere with his
or her prosecutorial functions or to affect confidence in his or her inde-
pendence.
Integrity can be described as the moral worth of an individual. Its
presence evokes a sense of confidence and justice, while the absence of it
promotes suspicion and distrust. Impartiality, as well as honesty, are there-
fore, crucial indices of integrity. This is the sense in which the Statute uses
the phrase “high moral character” 18: the inquiry focuses on what kinds of
perceptions are evoked by the conduct in question?
Although these attributes are required for all the staff of the Court –
indeed any ‘international civil servant’ – the conduct of the Prosecutor,
members of the OTP, and the Judges command more attention, given the
complex political environment in which the ICC operates. Unlike judges,
however, whose official duties are deliberative and joint, the actions and
decisions of the OTP are attributed singly to the Prosecutor. 19 The Prosecu-
16
Ibid., pp. 207–209.
17
Ibid., p. 211.
18
See ICC Statute, Article 42.3, see above note 1.
19
The OTP is regarded in this sense by its first Senior Legal Adviser, Morten Bergsmo, as the
“weakest link”. See Morten Bergsmo, “Institutional History, Behaviour and Development”,

tor cannot refrain from taking politically sensitive steps simply on the
ground that this would provoke controversy. However, “he is requested to
be fully aware of these human reactions and meticulously check himself so
that they are not permitted to influence his actions”. 20
Apart from the personal integrity of officials, there is also institution-
al integrity. This approximates to the values and norms that an institution
champions or through which it measures integrity and punishes infractions
and can often be located in the corporate ethics code or collectively in the
ethics codes for members of the Institution.
If prosecutorial discretion and choices are complicated in domestic
legal systems, the need for guidance in the ICC, which thrusts upon the
Prosecutor the unique responsibilities for seeking the truth (by according
equal weight to the investigation of incriminating and exculpatory materi-
al) 21 cannot be over-emphasized. A code of conduct provides a uniform,
objective and ethical rationale for the application of the provisions of the
Statute and Rules. Without it, uneven and subjective application of the hard
law to situations will be unavoidable. Such codes are characterized by Na-
khjavani as a set of fundamental beliefs, attitudes, habits of thought and
action, learnt and practised over time and in diverse contexts, which are
inseparable from the act of legal characterization itself and its occasionally
world-shaping effects. 22
30.3.1. Judges
Articles 3, 4 and 5 of the Code of Judicial Ethics require Judges of the ICC
to be independent, impartial and to demonstrate integrity in the course of
their duties. These provisions also emphasize the need for judges to avoid
putting themselves in situations that conflict with or interfere with their
integrity or duties.
in Morten Bergsmo, Klaus Rackwitz and SONG, Tianying (eds.), Historical Origins of In-
ternational Criminal Law: Volume 5, FICHL Publication Series No. 24, Torkel Opsahl Aca-
demic EPublisher, Brussels, 2017, p. 7 (https://www.legal-tools.org/doc/09c8b8).
20
Dan Hammarskjöld, “The International Civil Servant in Law and in Fact”, in Wilder Foote
(ed.), The Servant of Peace: A Selection of the Speeches and Statements of Dag Hammar-
skjöld, Secretary-General of the United Nations, 1953–1961, The Bodley Head, 1962, p. 348
(https://www.legal-tools.org/doc/64bcae/).
21
ICC Statute, Article 54(1)(a), see above note 1.
22
See Salim A. Nakhjavani, “The Origins and Development of the Code of Conduct”, in
Bergsmo, Rackwitz and SONG (eds.), 2017, p. 954, see above note 18.

30.3.2. Office of the Prosecutor

Although the OTP is required under the Statute to act independently as a
separate organ of the Court, a substantive Code of Conduct for the OTP
was not adopted until 2013. Prior to this, the general terms of Articles 44 of
the Statute applied to the Prosecutor and the Deputy Prosecutor, while Staff
Rules and the Code of Conduct for Staff Members applied to the staff. 23
Unlike the Staff Rules and the Code of Conduct for Staff Members,
the Code of Conduct for the OTP applies to the Prosecutor, the Deputy and
all members of the Office as well as interns, visiting professionals, gratis
personnel, and staff members of other organizations on short term assign-
ment to the Court. Also, unlike the Code of Judicial Ethics, the ethics
framework for the OTP is more elaborate, going as far as illustrating situa-
tions that come under the general normative framework of the Statute. It
outlines, in Section 2, some examples of how the duty to act independently
under Article 42 of the Statute can be breached or observed. For instance, it
forbids members of the OTP from acting or seeking to act on instructions
from any external source, or from activities that may negatively affect the
confidence of others in the independence or integrity of the OTP; or from
activities which may interfere with their duties; or from which it can rea-
sonably be inferred that their independence has been compromised. 24
30.4. Pressures
The power wielded by the Prosecutor and Judges of the ICC is not incon-
sequential. Insulating discretion from personal or proprietary interests can
be Herculean in the midst of the pressure and the dynamics of the interna-
tional criminal justice system. The illustrations and instances cited in the
Code of Conduct for the OTP provide different scenarios by which pressure
can be brought to bear on the integrity and independence of Judges as well
as the staff of the OTP – for instance, where there is a personal interest in a
case, or a personal or professional relationship with any of the parties or
victims. 25
23
Under Article 44 of the ICC Statute, these are personnel appointed by the Prosecutor and the
Registrar. Markovic rightly doubts the application of these Rules to the Prosecutor or Depu-
ty Prosecutor. Markovic, 2011, p. 206, see above note 10.
24
ICC Code of Conduct for the OTP, Section 2, para. 23(a), see above note 3.
25
Ibid., Section 9, para. 42.

Although the Code of Judicial Ethics did not contain similar illustra-
tions, they are of equal significance to Judges of the Court. Such pressures
can be characterized as political, economic, cultural or even historical. Fur-
thermore, they can vary in intensity and type depending on the socio-legal
background or even status of the official. Naturally, the higher the status of
the official, the more intense the pressure will be. The Prosecutor, Judges,
and other high officials necessarily find themselves in the eye of the public,
whether willingly or unwillingly. They must rise beyond showmanship and
focus on the essentials of their job. The internal conflicts are considerable.
Together with the inherently political nature of most international crimes
like war crimes and genocide, no one should doubt that States will exert
pressure on these officials directly or otherwise. While a code of ethics and
integrity will not prevent these pressures, it will greatly assist the Prosecu-
tor and the staff of the OTP in dealing with them. However, much more
needs to be done in order to secure widespread understanding and compli-
ance. In the next section, diverse scenarios of the pressure dynamics and
the impact of socio-cultural factors are examined with a view to demon-
strating the need for an institutional compliance mechanism.
30.4.1. Political Pressure
Political pressure is often brought to bear in the course of the appointment
or tenure of the official. In a seminal article on the international civil serv-
ant, Dag Hammarskjöld highlighted two complementary factors: first, that
international bodies must perforce work with persons from different na-
tionalities and second, that these persons more often than not have the po-
litical support of their country of origin or a bloc of States. 26 The motives
for support vary, but as Morten Bergsmo puts it, whatever the motive, there
is no lack of efforts by States to promote candidates that can be “influ-
enced” or subsequently shown up as ineffectual or ridiculed. 27 The ICC
operates in a complex political environment and depends greatly on gov-
ernments for wide-ranging matters such as the smooth conduct of prelimi-
nary examination or the exercise of investigation powers, witness protec-
tion or, indeed, its budget. In such circumstances, some measure of ‘politi-
cal protection’ from an influential State or bloc of interests is inevitable.
Where decisions or actions of the Court coincide with the interests of such
a ‘protector’, perceptions of bias cannot be avoided even if this is purely
26
27
See Bergsmo, 2017 pp. 7, 8, 30 and 31, see above note 19.

accidental. Judge Goldstone has characterized the impact of politics on jus-

tice and integrity as a fact of life that should not be ignored. 28
Despite the fairly straightforward process outlined in Articles 36 and
42 of the ICC Statute for the nomination and election, respectively of Judg-
es and the Prosecutor of the Court, the process is laced with intricate politi-
cal and diplomatic undertones. 29 The provisions envisage an election by an
absolute majority of members of the Assembly of States Parties, however,
so far, this has been the case only with Judges. The first and current Prose-
cutor of the Court were elected to date by consensus, which, in my opinion,
mutes dissenting voices and accentuates the political influence. While con-
sensus may give rise to negotiations and horse-trading, it has certain politi-
cal connotations, which usually prevent States, developing ones in particu-
lar, from blocking consensus during international negotiations. Since the
process of decision-making through consensus is conducted openly, many
developing countries are concerned about the consequences of their objec-
tions and thus prefer to remain silent in order not to be seen as stumbling
blocks to the consensus. 30
30.4.2. Economic Pressure
It has been observed that by instituting nine-year non-renewable terms for
the Prosecutor and similarly for Judges, the Statute has reduced threats to
independence as well as other drawbacks of re-election. 31 On the other
hand, an official, may on account of a single term, become more suscepti-
ble to economic or cultural pressures arising from concern about a career
after service to the Court. Another source of pressure, therefore, is attribut-
able to future career prospects at the end of service in the ICC. Hence, will
a Prosecutor or a Judge nearing the end of their terms make decisions or
issue judgments more favourable to some States, as insurance for a future
position at home or elsewhere?
28
Richard J. Goldstone, “Prosecutorial Language, Integrity and Independence”, CILRAP Film,
2 December 2018 (https://www.cilrap.org/cilrap-film/181202-goldstone).
29
Ibid.
30
This is a common feature of the dynamics of the UN political system and is alluded to also
by Paschke, 2018, see above note 7.
31
Brandeis Institute for International Judges, “Challenges to Judicial Independence” in
Brandeis Institute for International Judges, Toward an International Rule of Law, Brandeis
University, Waltham, MA, 2010. See also ICC Statute, Article 36(9) (Judges) and Article
42(4) (Prosecutor), see above note 1.

The nature of the work of the ICC Prosecutor and Judges involves
making decisions that many powerful States find unpleasant. This “step-
ping on toes” often places a judge in an adverse position for seeking future
job opportunities in such States. In reaction to the preliminary examina-
tions conducted by the Prosecutor on alleged war crimes in Afghanistan,
the United States issued a “warning” to the ICC to desist from conducting
the investigations and had threatened to “use any means necessary to pro-
tect its citizens from unjust prosecution by [the] illegitimate court”. 32 Part
of the threat was a “policy of U.S. visa restrictions on those individuals di-
rectly responsible for any ICC investigation of U.S. personnel” as well as
economic sanctions. 33 The US eventually revoked the visa of the Chief
Prosecutor in April 2019, 34 and subsequently imposed sanctions on her and
her staff member Mr. Phakiso Mochochoko. It is not surprising that, even-
tually, the ICC Pre-Trial Chamber II rejected the request of the Chief Pros-
ecutor to open an investigation probe into US involvement in Afghanistan,
albeit on the ground that “an investigation into the situation in Afghanistan
at this stage would not serve the interests of justice”. 35 The Chamber elabo-
rated further that although all the relevant requirements were met as re-
gards both jurisdiction and admissibility, the current circumstances of the
situation in Afghanistan were such as to make the prospects for a success-
ful investigation and prosecution extremely limited. 36 While the basis for
the decision is practical, it also demonstrates the delicate interplay between
international justice and international politics. The action of the US in this
situation is a form of economic pressure as judges of the Court may be
pressurized to consider the likelihood of losing career prospects in the US
after their tenure, if the threat by the latter is eventually carried out.
It is obvious also that some of the challenges or threats to independ-
ence outlive the position and do not necessarily disappear by foreclosing
32
See Al Jazeera, “Full text of John Bolton's speech to the Federalist Society”, 10 September
2018.
33
See Michael R. Pompeo, “Remarks to the Press”, US Department of State, 15 March 2019,
available on Department of State’s web site.
34
BBC News, “US revokes visa of International Criminal Court prosecutor”, 5 April 2019,
available on its web site.
35
ICC, Situation in the Islamic Republic of Afghanistan, Pre-Trial Chamber, Decision Pursu-
ant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situa-
tion in the Islamic Republic of Afghanistan, 12 April 2019, ICC-02/17-33
(https://www.legal-tools.org/doc/2fb1f4).
36
Ibid., para. 96.

re-election or term renewals. Ethics compliance officers must, for example,

consider situations where the international justice official exhibits conduct
calculated to catch attention of the ‘market place’ and position themselves
for a post-retirement career as for example where an official slants his or
her actions or pronouncements (including dissenting judgments) so as to
demonstrate ideological or conceptual persuasions that can influence a
chair in a university or form the basis of a commissioned authorship or
consultancy after his tenure. 37 It must, however, be said that this kind of
pressure is probably not of major concern for accomplished jurists or ex-
perts – they already have some competitive edge. However, it will be a ma-
jor challenge for officials of lesser experience and for whom service at the
ICC is a unique ‘door opening’ activity.
30.4.3. Historical Pressure
It is also important to appreciate that some pressures can be applied by a
State that is peculiarly situated in relation to the international justice offi-
cial. Consider the potential influence wielded by a former colonial power
in terms of educational, professional and social opportunities and how such
influence can challenge the independence of the international justice offi-
cial who is a national of a former colony. The factors at play are diverse
and are a combination of the educational and cultural background of the
justice official. The situation becomes complicated where another State
leverages such relational dynamics to exert pressure. Global alliances can
give rise to a regional power leveraging on the historical tie of another na-
tion to seek to compromise the integrity of an official. This pressure can
work in several ways – taking a course of action or refraining from it in
order to receive favour or avoid the disapproval of a State or a bloc of
States.
Historical pressure can also be discussed along the lines of the de-
pendence on foreign aids by developing countries. It has been noted that
foreign aids can be used in the promotion of neo-colonial agenda, 38 and
events have indeed shown that donor States would withdraw aids from de-
veloping countries due to defiance or unyieldingness of the latter to certain
37
Brandeis Institute for International Judges, 2003, p. 6, see above note 5.
38
Stephanie Itimi, “Is Foreign Aid a facilitator of Neo-Colonialism in Africa?”, in Journal of
African Cultural Studies, 2018 (on file with the author).

standards. 39 An instance was the foreign aid cut to Uganda when it enacted
its anti-gay law. 40 This supports the view that foreign aid is a tool that can
be used by donor States to advance a specific agenda. In the light of histor-
ical pressure in this discourse, a justice official from a State that is depend-
ent on aids by some particular States may be pressurized by his or her
home State as regards the interests of the donor States.
30.4.4. Socio-Cultural Pressure
There are some other forms of pressure that are socio-cultural and which
may or may not be concerned with career prospects or job security. What,
for example, constitutes independence in terms of the OTP or a Judge? In-
dividual or cultural perspectives of the concept of independence vary.
Whereas in some countries, the duty of independence of a Prosecutor does
not prevent notification of an intended course of action to a supervisor or
superior official discussion of the case with the prosecutor’s colleagues,
expressing pre-determined views can be problematic in an international
court. 41 Considering the dynamics of the ICC, there are no clear answers.
Context, as usual, plays a role. We should not also forget that the duty of
independence is yoked with that of confidentiality, and even if the official
stoically rebuffs external pressure in such discussions, the mere fact of par-
ticipating in such discussions and disclosure of some material could
amount to a breach of the code.
Another area of difficulty is interaction and communication. Judges
in many countries are perhaps familiar with the need to be circumspect in
conversations concerning their work. The same cannot, however, be said
about prosecutors and investigators. In some national jurisdictions, for ex-
ample, in Nigeria, press releases and interviews concerning arrested sus-
pects or ongoing trials are routine – sometimes with damning conclusions
made on the guilt of the suspects. However, this should not be the case,
given the sensitive and inquisitorial nature of ICC investigations and pros-
ecutions. This was clearly the position of the Trial Chambers in the Luban-
ga case while criticizing the OTP when, in a press interview, an OTP staff
misrepresented proceedings in the Lubanga case and predicted a long jail
39
BBC News, “Cameron threat to dock some UK aid to anti-gay nations”, 30 October 2011,
available on its web site.
40
Al Jazeera, “Uganda hit with foreign aid cuts over anti-gay law”, 27 February 2014, availa-
ble on its web site.
41
See Goldstone, 2018, see above note 28.

term for Lubanga based on the “courageous and credible witnesses” of the
prosecution. 42
There are less subtle pressures such as monetary gifts or in-kind as-
sistance rendered to the official, relatives or associates. Some so-called ‘so-
cial obligations’ – customary gifts in societies where social events are intri-
cately connected with class or status are problematic. Events that provide
the challenge in Nigeria or for a Nigerian will probably not matter to offi-
cials of other nationalities. In some countries, for example, monetary gifts
during social events or welcome/farewell gifts are customary. For interna-
tional officials working in these environments, for example, examination or
investigation teams of the OTP, what is required is not simply an ethics
code but also guidance on these socio-cultural issues so as to conform to
the constitutional tone without offending host States.
It is instructive that the Code of Conduct for the OTP addresses this
kind of unethical conduct. It must always be remembered that officials
must guard against the appearance of bias as well as actual bias. The Code,
therefore, provides in Section 6.30 that:
impartial conduct includes
1. respect for the presumption of innocence. In particular,
Members of the Office shall not publicly express an
opinion on the guilt or innocence of a person under in-
vestigation or the accused outside the context of the pro-
ceedings before the Court;
2. refraining from expressing an opinion that could, objec-
tively, adversely affect the required impartiality, whether
through communications media, in writing or public ad-
dresses, or through any other actions outside the context
of the proceedings before the Court […].
In the absence of a generally applicable international standard to de-
termine the acceptable norms, judicial officers will be left to adhere to the
customary ethical norms in their States. The challenge this poses is that a
judicial officer whose socio-cultural background allows certain social in-
teractions and relationships may do so innocently meanwhile, it may later
give room for pressure. However, no one should be in doubt that judicial
officers cannot plead the customary gift excuse where this is offered by a
litigant or counsel to a litigant.
42
ICC Lubanga du Hellen interview Decision, see above note 13.

30.4.5. Post-Employment Pressures

Cases or matters in which an official has been or is likely to have been pro-
fessionally involved do not, of course, terminate with the departure of the
official or expiration of the official’s tenure. Conflicting interests can arise
even after the employment is terminated, particularly where knowledge and
goodwill gained in the course of duty – as Judge or Prosecutor is exploited
in a private consultancy. This question is of major importance considering
the fact that unrestricted engagements of this nature can exert as much
pressure on the official or other officials while in office (by compromising
his independence in order to gain an advantage of employment) or after
leaving office (by disclosing or accessing sensitive information on an ongo-
ing case). Shortly after he left office, the first Prosecutor of the Court,
Moreno-Ocampo, was engaged as a consultant to Hassan Tatanaki, a prom-
inent figure in Libya and business partner to Seif al-Islam Gaddafi, son of
the former Libyan leader Muammar Gaddafi. The fact that in 2009 he
opened an investigation into Muammar and Seif Gaddafi on suspicion of
crimes against humanity and that Tatanaki was closely connected with the
Gaddafi regime did not seem to matter to Moreno-Ocampo, who reportedly
said that the purpose of the consultancy was to help end the civil war. 43
Among several other reported infractions after his disengagement, Moreno-
Ocampo allegedly made money from assisting persons suspected of having
aided violations in Libya with help from some staff in the OTP. 44
Some existing rules and regulations relating to Staff of the Court 45
provide limited bases for post-employment obligations. For instance, the
Staff Regulations of the ICC in Regulation 1.2(i) specifies the obligations
of the staff, and this includes utmost discretion with regard to all matters of
official business. 46 Regulation 1.2 (i) goes on to state: “Those obligations
do not cease upon separation from service”. Also, the Staff Rules of the
43
See Barney Thomson, “Former ICC prosecutor in Row over Lucrative Consultancy Work”,
Financial Times, 6 October 2017, available on its web site.
44
See Bergsmo, 2018, p. 2, see above note 6.
45
The applicability of these Rules to elected officials – for example, Judges, the Registrar and
the Prosecutor or Deputy Prosecutor – is in doubt. See Markovic, 2011, p. 206, see above
note 10.
46
ICC, Staff Regulations, 12 September 2003 (‘ICC Staff Regulations’) (https://www.legal-
tools.org/doc/3542d3).

ICC in Rule 101.4 provide: “The obligations of staff members regarding

confidentiality shall not cease upon separation from service”. 47
However, to avoid possible conflict of interest obligations, there is a
need for stronger provisions. To what extent, therefore, can some reasona-
ble restraint be imposed on international justice officials with regard to the
nature of their post-employment engagements?
Such clauses are features of employment contracts under the domes-
tic law of States where their validity is hinged on whether the clause is un-
fairly restrictive, that is, in terms of geographical or temporal scope; or es-
sential to protect the business or corporate interests of the former employer;
or against the public interest. Similarly, a Secretary-General’s Bulletin on
post-employment restrictions 48 in the context of procurements states that:
former staff members who have participated in the UN pro-
curement process may not seek or accept employment with
any UN contractor or vendor for a period of one year follow-
ing separation from service. Restrictions on UN lobbying for a
period of two years also exist for former staff members who
participated in the procurement process. 49
In-service staff members involved in the procurement process are required
to refrain from soliciting or accepting offers of future employment from
any UN contractor or vendor; where an offer is received from a vendor, the
staff member is required to report the incident and recuse themselves from
any further dealings with that contractor or vendor. Without a doubt, there
is a strong public interest element in preventing a former staff of the Court
from exploiting confidential information to his or her advantage. However,
the precise scope of such a restriction may have to be limited to ICC mat-
ters and only for a reasonable period (one year perhaps).
Two additional points should be made. First, there is the possibility
that such clauses will discourage many professionals from making their
services available to an international court. It is also in the public interest to
avoid this situation. In my view, however, this should not be of major con-
cern. Many professionals are already familiar with confidentiality and fi-
delity obligations to clients, some of which are lifelong. Therefore, intro-
47
ICC, Staff Rules of the ICC, 25 August 2005 (‘ICC Staff Rules’) (https://www.legal-
tools.org/doc/10f5c7).
48
Secretary General’s Bulletin – Post-employment restrictions, UN Doc ST/SGB/2006/15, 26
December 2006.
49
Ibid., Sections 2.1 and 2.2.

ducing restraint clauses in the contract for engaging such professionals

cannot be strange.
Second, while the clause is contractual, we note that it flows from the
Court’s corporate ethics on integrity and independence. 50 In particular, Sec-
tion 9.42 of the Code of Conduct for the OTP provides: “Members of the
Office shall abstain from any conduct which may, directly or indirectly, be
in conflict with the discharge of their official duties during terms of service
or may compromise the independence and trust reposed in the Office, fol-
lowing separation of service”.
Similarly, Section 9.44 restrains a former staff member from accept-
ing engagement or appointment as defense counsel or member of a defense
team in any of the proceedings before the Court for a period of 12 months
from the day of separation, unless specifically authorized by the Prosecutor.
Although the operation of this provision is conditional on a declaration by
the concerned staff, it is suggested that such declaration should not be op-
tional and that a similar obligation should apply to Judges of the Court.
30.5. An Ethics Compliance Mechanism
What flows from the above is that integrity challenges for officials in the
field of international justice in these rapacious and dangerous times are in-
creasingly complex and dynamic. Despite the diverse cultures represented
in an organization like the ICC, codes of conduct, or ethics can only pre-
scribe objective standards of conduct. Compliance or enforcement must
also be done evenly and objectively. This does not, however, ignore the
need to resolve or lessen the impact of vulnerabilities arising from diversity.
The key to this is taking proactive, supportive measures that aid voluntary
compliance.
This is the weak link in the ICC’s ethics compliance mechanism. The
extant codes provide that apart from immediate supervisors, requests for
guidance or reports of actual or potential breaches should be directed at the
elected officials, namely, the Prosecutor or the Deputy Prosecutor in the
case of the OTP’s Code or the President or the Vice President in the case of
the Judicial Ethics. In fact, these officials may have limited knowledge,
time, or experience to guide on ethics issues, or there may be some other
limiting factor as to where the official’s conduct is related to the concern.
50
ICC Staff Regulations, Section 1.2(i), see above note 46; ICC Staff Rules, Section 101.4(d),
see above note 47.

Such questions relate, inter alia, to what kinds of social or profes-

sional engagements should be attended? What kinds of gifts are acceptable?
Which social media is safe are few examples of dilemmas that can arise in
ways that even the elected official is unable to provide guidance despite the
obligation under Section 2.1.15 of the Code for the OTP to set an impecca-
ble example of conduct for the staff members and provide, inter alia, ap-
propriate direction, guidance and support in the promotion and cultivation
of the standards expected of the Office. 51
With over 1,400 staff members, the ICC does not have an adequate
institutional framework to support staff compliance on ethics issues. This is
surprising, given that concern for an advisory and supportive unit on com-
pliance featured prominently at the early stages of developing a code of
conduct. 52 Although the Code of Conduct for the OTP prescribes a proac-
tive mechanism by requiring that the Legal Advisory Section shall assist
the Prosecutor in promoting awareness of and compliance with the Code,
this responsibility should be formalized.
The lack of an ethics and compliance office in the ICC is chiefly re-
sponsible for the critical policy gaps and errors of judgment discussed ear-
lier. Indeed, if officials operate in an institution with a weak culture of in-
tegrity and a high level of impunity, there is not much one can expect in
terms of individual integrity. 53
The Independent Oversight Mechanism (IOM) established per Arti-
cle 112(4) of the Rome Statute and which became operational only in 2017,
at first sight, seems to meet the need for an institutional ethics compliance
mechanism. However, closer scrutiny yields severe limitations. 54 The pur-
pose of the IOM is to provide meaningful oversight of the Court through its
mandate to conduct internal court inspections, evaluations, and investiga-
tions. Inspections and evaluations are aimed mainly at ensuring efficient
operations and are activated at the request of the Bureau or the Assembly of
States Parties. The IOM mandate also allows it to undertake, subject to
available resources, evaluations, and inspections at the direct request of a
51
See also ICC Code of Conduct for the OTP, Sections 2.2.24 (independence) and 3.9.43 (con-
flict of interest), see above note 3.
52
53
Inder, 2018, see above note 8; See also Paschke, 2018 see above note 7.
54
Bergsmo et al., 2017, see above note 8; see also Karim A.A. Khan, “Integrity and the Limits
of Internal Oversight Mechanisms”, CILRAP Film, 2 December 2018 (https://
www.cilrap.org/cilrap-film/181202-khan/).

Head of Organ. However, it cannot initiate either an evaluation or inspec-

tion without having received an authorized request to do so. An investiga-
tion, on the other hand, can be undertaken by the IOM at its own discretion
into any report of misconduct or retaliation that it receives concerning an
elected official or member of Court personnel. Misconduct in the context of
ICC staff members and other personnel is non-compliance with a relevant
ICC rule, regulation, or other administrative instruction, including relevant
standards of conduct. Misconduct in the context of elected officials and
their specific functions is separately detailed in the Court’s Rules of Proce-
dure and Evidence. It seems clear, therefore, that the mandate of the IOM
as far as misconduct or unethical conduct is concerned essentially consists
in investigating a report relating to conduct of an official of the Court – and
even so, it must consult with the Head of an organ before such an investi-
gation so as not to prejudice an ongoing investigation. The IOM cannot
investigate alleged misconduct of a former staff or official and quite clearly
is not concerned with counselling staff on ethics compliance. 55 It may,
however, through its work, provide credible, useful and evidence-based
information to the decision-makers and other relevant stakeholders. 56
However, given the diverse challenges to independence and integrity
that may arise, and bearing in mind that disclosure or requests for guidance
may require confidentiality, a proactive and independent mechanism is re-
quired. 57Such a mechanism, such as the UN Ethics Office, if established,
will prevent or mitigate damage to institutional reputation by providing
guidance to staff in perceived or actual situations of doubt. 58 There is no
need to have an elaborate structure for such an office as the functions can,
in my view, be effectively combined with the office of the legal adviser of
the ICC. The fears that haunted an earlier draft about entrusting such a
mandate in a person, for example, whether such person would be trusted or
55
Ibid.
56
ICC, “The Independent Oversight Mechanism (IOM) Mandate”, available on its web site.
57
See Women’s Initiatives for Gender Justice, “A Critical Time for the ICC’s Integrity”, 12
October 2017 (http://www.legal-tools.org/doc/e2fbc7/), which called for two new compli-
ance mechanisms – an Integrity Advisory Board and an Ethics/Compliance Office in the
Court.
58
The UN Ethics Office was established in 2005 offers confidential ethics advice, ethics
awareness and education, protection against retaliation for reporting misconduct, financial
disclosure programme and promotion of coherence and common ethics standards across the
UN. See UN Ethics Office, “What is the UN Ethics Office”, available on its web site (‘UN
Ethics Office web site’).

would not become overbearing 59 are now significantly doused successful

by the models provided to us by the Ombudsman of the EU and the UN
Ethics Office.
The justification to be proactive in institutions such as the ICC is
self-evident. Whenever a case of alleged impropriety is attributed to an of-
ficial of the ICC, the resulting damage to the institution and loss of public
confidence are unquantifiable. 60 When serious ‘integrity’ problems within
international courts become manifest, they tend to affect the external repu-
tation of and support for the institution and erode morale among the staff.
Quite apart from such crisis management after the damage is done, focus-
ing on the standard and practice of ‘integrity’ is an open-ended necessity
for international justice institutions. The structure and practice of such an
office are already well demonstrated in the practice and institutional proce-
dures of the UN Ethics office. Established in 2005 for the purpose of secur-
ing the highest standards of integrity among the UN staff, the main func-
tions of the UN Ethics Office 61 are to:
1. administer the UN financial disclosure programme;
2. protect staff against retaliation for reporting misconduct and for co-
operating with duly authorized audits or investigations;
3. provide confidential advice and guidance to staff on ethical issues,
for example, conflict of interest, including administering an ethics
helpline; and
4. develop standards, training and education on ethics issues, in co-
ordination with the Office of Human Resources Management and
other offices as appropriate, including ensuring annual ethics training
for all staff.
According to the web site of the Office, the justification for its exist-
ence is first, the changing and dynamic nature of the work of the UN, se-
cond, the complexities of a rapidly-evolving environment in which deci-
sions are taken, and third, the challenge of objective and uniform standards,
given the multi-cultural staff of the UN in duty stations in every region of
59
See Nakhjavani, 2017, pp. 957–958, see above note 22.
60
See Bergsmo et al., 2017, see above note 8.
61
See Secretary General’s Bulletin – Ethics Office – Establishment and Terms of reference,
UN Doc ST/SGB/2005/22, 30 December 2005.

the world. 62 In its advisory mandate, the Office treats all requests and advi-
sories with confidentiality.
Through this service, the staff members are better able to describe
their problems or concerns, identify the rules and regulations that may ap-
ply, examine their options, and understand the consequences. Through the
advisory process, the staff is better able to make ethical decisions that serve
the interest of the UN. Ethics advice is confidential to the person requesting
assistance. The Office has also published several guides on conflicts of in-
terest, financial disclosures, and an Ethics Roadmap for the guidance of
staff. It is also instructive that a similar mechanism exists under the Euro-
pean Union where a Complaints and Inquiry Unit clarifies on request, in
concrete terms, the meaning of ethical principles on integrity and conflict
of interest to staff members of the European Union – another multi-cultural
organization. 63
30.6. Conclusion
Although the standards of independence and integrity are required for all
staff (including elected officials of the Court), the conduct of the Prosecutor,
members of the OTP, and the Judges command more attention, given that
international criminal trials are more complex, more expensive, and more
difficult to accomplish than domestic prosecutions. If proceedings are prej-
udiced on account of misconduct by the Prosecutor, it has a significantly
negative effect on the resources and time of the Court. 64
While Codes on ethical standards are important, the conflicts and
pressures inherent in the duties of the persons of diverse cultures and back-
ground that work as officials of the OTP, as Judges and indeed other staff
confront these officials in equally diverse ways. The establishment of a
proactive independent mechanism similar to the UN Ethics Office will ad-
dress these concerns by supporting staff compliance on ethics through
counselling and issuing guidelines.
62
UN Ethics Office web site, see above note 57.
63
Marta Hirsch-Ziembinska, “Integrity and the Work of the European Ombudsman”, CILRAP
Film, 2 December 2018 (https://www.cilrap.org/cilrap-film/181202-ziembinska).
64
Jenia Turner, “Policing International Prosecutors”, in NYU Journal of International Law and
Politics, 2012, vol. 45, no. 1, pp. 210–211.

31
______
Integrity and the Inevitable Political Exposure of

Christopher Staker *
A large amount of subject matter that could be said to fit under this title has
already been addressed by others. This contribution is, in fact, concerned
with one specific manifestation of the problem of political exposure, aris-
ing from the fact that certain aspects of the international criminal justice
system fall within the responsibility of political rather than independent
judicial or prosecutorial decision-makers.
If asked to what extent it is appropriate for aspects of the criminal
justice system to be entrusted to or influenced by political decision making,
the instinctive first reaction of many would be to respond that even the tini-
est amount of political influence would taint and corrupt the integrity of the
entire process. That view may, of course, be a fundamental truth in relation
to some parts of the system. When judges retire at the end of a case to con-
sider their verdict, they should obviously conduct their deliberations in
complete independence and with complete impartiality, without outside
influence of any kind, political or otherwise, and should base their decision
solely on the evidence before them and the law.
However, when the entire criminal justice system is considered as a
whole, it can be seen on reflection that it is simplistic to suggest that politi-
cal decision-making should never play any part anywhere in the system at
all. In a domestic legal system, where political decision-makers are the leg-
islature, the executive, or even the electorate as a whole, it will for instance
typically be a political decision-maker (the legislature) that creates and de-
fines substantive crimes and the maximum penalties for those crimes. It
*
Dr. Christopher Staker is a Barrister at 39 Essex Chambers in London. He has been coun-
sel in cases before the International Court of Justice, International Tribunal for the Law of
the Sea, International Criminal Tribunal for the Former Yugoslavia (‘ICTY’), Special Court
for Sierra Leone, and European Court of Human Rights. Previously, he has been Principal
Legal Secretary at the International Court of Justice; Deputy Prosecutor of the Special Court
for Sierra Leone; Senior Appeals Counsel at the ICTY; and Counsel Assisting the Solicitor-
General of Australia. He originally trained as a diplomat with the Australian Department of
Foreign Affairs. He holds a doctorate degree from Oxford.

will be political decision-makers who determine the annual budgets of the

various organs of the criminal justice system. In some systems, political
decision-makers (the executive or the legislature) will appoint, or have a
role in the appointment of, judges and chief prosecutors 1 (and indeed, in
some systems, judges and even chief prosecutors may be directly elected
by the population). 2 In some systems, political decision-makers may issue
certain instructions 3 or guidance 4 to prosecution authorities. There may
also be other ways in which political decision-makers play a role in the
criminal justice system more directly. 5
1
See, for instance, J. van Zyl Smit, The Appointment, Tenure and Removal of Judges under
Commonwealth Principles: A Compendium and Analysis of Best Practice (Report of Re-
search Undertaken by Bingham Centre for the Rule of Law, British Institute of International
and Comparative Law, London, 2015, p. xvi:
Only 19% of Commonwealth jurisdictions have executive-only appointment systems in
this sense (appointments to the highest court are reserved for the executive in another
8% of jurisdictions, and the appointment of the Chief Justice in a further 23% of juris-
dictions). […] In 21% of Commonwealth jurisdictions there is some legislative in-
volvement in the appointment of judges, usually by way of confirmation of candidates
selected by a judicial appointments commission.
2
Jed Handelsman Shugerman, The People’s Courts, 2012, Harvard University Press, p. 3
(“Almost 90 percent of state judges [in the United States] face some kind of popular elec-
tion”); Michael J. Ellis, “The Origins of the Elected Prosecutor”, in The Yale Law Journal,
2012, vol. 121, no. 6, pp. 1528, 1530 (“The United States is the only country in the world
where citizens elect prosecutors”).
3
See, for instance, United Nations General Assembly, Human Rights Council, Report of the
Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, UN Doc.
A/HRC/20/19, 7 June 2012, para. 73 (https://www.legal-tools.org/doc/dqtiml/) (“In order to
ensure a fair and consistent approach in criminal justice policy, general guidelines can be is-
sued by the prosecution service itself (internally) and by nonprosecutorial authorities (exter-
nally)”), para. 74 (“the issue of instructions by nonprosecutorial authorities should be: trans-
parent, consistent with lawful authority and subject to established guidelines to safeguard
the actuality and the perception of prosecutorial independence”), para. 116 (“Case-specific
instructions to prosecutors from external organs should be avoided. However, in extraordi-
nary cases, when such instructions are deemed necessary, they should be in writing and for-
mally recorded and carefully circumscribed to avoid undue interference or pressure. Prose-
cutors should have the right to challenge the instructions received, especially when they are
deemed unlawful or contrary to professional standards or ethics”).
4
For example, South Australia, Director of Public Prosecutions Act 1991, 6 July 1992, sec-
tion 9(2) (https://www.legal-tools.org/doc/zg1tc7/) (“The Attorney-General may, after con-
sultation with the Director [of Public Prosecutions], give directions and furnish guidelines to
the Director in relation to the carrying out of his or her functions”).
5
For instance, in certain jurisdictions, the Attorney-General, a government minister, has the
power to issue ex officio indictments or to terminate a prosecution by issuing a nolle prose-
qui.

31. Integrity and the Inevitable Political Exposure of International Criminal Justice
Depending on the system, the judiciary may deliberately exercise re-

straint in certain respects in order not to encroach on areas that the judici-
ary acknowledges properly to fall within the domain of political organs of
the State. For instance, courts in a common law country may take the view
that they have no power through the development of case law to create new
common law offences or to widen the scope of existing common law of-
fences, now seen as a function of the legislature. 6 On the other hand, a
judgment of a court that significantly changes what had previously been
understood to be the scope of a provision of the criminal law may be wel-
comed in certain circumstances as an expansion and strengthening of the
rule of law. 7 However, certain judicial development of the law has at the
same time been criticised by some as undermining the rule of law as a re-
sult of the entry by the judiciary into an essentially political sphere. 8
6
United Kingdom, House of Lords (‘UKHL’), R. v. Withers, Judgment, 20 November 1974,
[1975] AC 842, pp. 854, 860, 863, 867, 877; England and Wales, Court of Appeal, R. v. Mis-
ra and Srivastava, Judgment, 8 October 2004, [2004] EWCA Crim 2375, [2005] 1 Cr App R
328, paras. 29–34; UKHL, R. v. Rimmington, Judgment, 27 October 2005, [2005] UKHL 63,
[2006] 1 Cr App Rep 17, paras. 33–35. See also UKHL, R. v. Jones, Judgment, 29 March
2006, [2006] 1 AC 136 dealing with the question whether crimes under international law are
automatically assimilated into UK domestic law, in which Lord Hoffmann referred at pa-
ra. 60 to “the democratic principle that it is nowadays for Parliament and Parliament alone to
decide whether conduct not previously regarded as criminal should be made an offence”.
7
See, for instance, the extrajudicial observations of a then justice of the High Court of Aus-
tralia in Michael Kirby, Judicial Activism: Authority, Principle and Policy in the Judicial
Method, Sweet & Maxwell, London, 2004, pp. 82–83:
the judicial abolition of spousal immunity for rape, without waiting for legislative
change, was informed by strong contemporary advances in the recognition of the rights
of women; […] In such a changed world, it was intolerable to expect contemporary
judges to give effect to the old rule, made by predecessors centuries earlier. […] [I]n do-
ing so, they gave voice to what would have been the overwhelming opinion of contem-
porary society. […] Who will say that the judges were wrong to redefine the common
law in that way? Be sure that some would denounce such action as egregious ‘judicial
activism’. If so, it is an epithet that the judges will gladly bear.
8
See, for instance, the extrajudicial observations of a then justice of the High Court of Aus-
tralia in Dyson Heydon, “Judicial Activism and the Death of the Rule of Law”, in Otago
Law Review, 2004, vol. 10, no. 4, p. 493:
The expression ‘judicial activism’ is here used to mean using judicial power for a pur-
pose other than that for which it was granted, namely doing justice according to law in
the particular case. It means serving some function other than what is necessary for the
decision of the particular dispute between the parties. Often the illegitimate function is
the furthering of some political, moral or social programme: the law is seen not as the
touchstone by which the case in hand is to be decided, but as a possible starting point or
catalyst for developing a new system to solve a range of other cases. Even more com-

Thus, in any domestic legal system, there may be an ongoing debate

as to the boundaries of those areas that should be the exclusive preserve of
political and judicial decision-making respectively, and of areas in which
each may legitimately play a role. 9
Similar issues inevitably arise also in the sphere of international law,
including international criminal law, where political decision-makers are
primarily States, acting either individually, or collectively as members of
political bodies such as the UN Security Council or the Assembly of States
Parties of the International Criminal Court. A decision by a State to act in a
certain way, or to vote in a certain way as a member of an organ of an in-
ternational organisation, being a decision taken by a political branch of that
State’s government, is inherently political, whether that State is thereby
seeking to give effect to its own self-interest or is seeking to act altruistical-
ly in the long term interests of the international community as a whole.
Some political decision making in the international criminal justice
system may be more or less analogous with that which exists in domestic
legal systems. Examples in the case of the International Criminal Court
include the functions of the Assembly of States Parties in adopting the El-
ements of Crimes and the Rules of Procedure and Evidence (analogous in a
way to the adoption of substantive and procedural criminal law by domes-
tic legislatures), and its adoption of the annual budget and the election of
the Judges and the Prosecutor.
However, in the case of the International Criminal Court, some of the
political decision making that is hard-wired into the system has no ready
analogy with domestic legal systems. Provisions dealing with the way that
the Court’s jurisdiction is triggered are an obvious example. For the Court
to exercise its jurisdiction, one way or another, a prior political decision is
required. For jurisdiction to be exercised under Article 13(a) or (c) of the
Statute of the Court, the requisite precedent political decision is that of a
State referred to in Article 12(2) either to become a party to the Statute of
monly the function is a discursive and indecisive meander through various fields of
learning for its own sake.
9
See, for instance, the extrajudicial observations of a judge of the United Kingdom Supreme
Court: Lord Hodge, “The scope of judicial law-making in the common law tradition”, Max
Planck Institute of Comparative and International Private Law Hamburg, Germany, 28 Oc-
tober 2019, para. 24 (“What have judges said about those boundaries? The answer is that
judges recognise that there is a boundary to judicial law-making but there is no consensus as
to where it is”) (available on the Supreme Court’s web site).

the Court or to make a declaration under Article 12(3) of the Statute. For
jurisdiction to be exercised under Article 13(b), the requisite precedent po-
litical decision is that of the Security Council to refer a situation to the
Prosecutor. For jurisdiction to be exercised under Article 13(a), a further
requisite precedent political decision is that of the relevant State to refer the
situation to the Prosecutor under Article 14(1) of its Statute. The exercise
of jurisdiction by the Court over the crime of aggression is subject to fur-
ther political decision-making, including the decision of the relevant State
whether or not to make or withdraw a declaration under Article 15bis(4),
and the decision of the Security Council to make (or not) a determination
under Article 15bis(6)-(8). Furthermore, the processes of the Court may be
interrupted by a political decision of the Security Council under Article 16
to request a deferral of an investigation or prosecution.
Thus, the question whether the International Criminal Court can or
cannot exercise jurisdiction in relation to a specific situation will depend
not just on political decisions taken at the time that the Court was initially
established, but by real-time political decisions taken by States contempo-
raneously with decision-making by the Prosecutor and Chambers of the
Court.
A further feature of the International Criminal Court that has no ob-
vious analogy with domestic legal systems is Article 127 of its Statute,
which confers on each State Party the right to withdraw from the Statute.
References to general principles established in domestic legal systems thus
provide no guidance on how the Prosecutor or Chambers of the Court
should react, for instance, to a situation where a group of States threatens to
withdraw from the Statute on the basis that those States are dissatisfied
with the direction that prosecutorial decisions are taking.
On one view, it might be said that such a situation would amount to
an unjustifiable attempt by the States concerned to exert political influence
over the Prosecutor, 10 and that maintenance of the integrity of the system
would require the Prosecutor to not be influenced or to be seen to be influ-
enced by such political pressures. This view might lead to the conclusion
that a Prosecutor of integrity should refuse to change course in response to
such threats to withdraw from the Statute, even in the hypothetical extreme
10
Compare the statement of Canada at the seventeenth session of the Assembly of States Par-
ties, December 2018, p. 5: “We remain concerned about efforts to undermine the Court’s
work, be it threats directed at the Court and its personnel, politically motivated withdrawals
or unexecuted arrest warrants”.

case where the result would lead to the withdrawal from the Statute of eve-
ry State Party, such that the Court itself would cease to exist.
However, a contrary view can also be put. A State which is not a par-
ty to the Statute might well decide against becoming a party – at least for
the time being – on the ground that it is not impressed by the current direc-
tion of prosecutorial decision-making. Nothing in the Statute could prevent
a non-State Party from so deciding or from publicly stating its reasons for
that decision, and it is unlikely that many would characterise such state-
ments by a non-State Party as an assault on the integrity of the Court. It is
difficult to see why the position is any different in the case of a State Party
contemplating withdrawal from the Statute, given that Article 127 of the
Statute gives States Parties an unequivocal right to withdraw. Any decision
by a State Party to do so will inevitably be a political decision. The Statute
in no way limits the reasons upon which a decision of the State Party to
withdraw may be based. 11 Indeed, some might argue that Article 127 is an
essential safety valve, enabling States Parties to decide to be no longer
bound by the Statute if they feel that the political compromises reflected in
the Statute are not being respected, or that the Court is not properly per-
forming the functions that it was set up to serve. Without that safety valve,
some States Parties might not have willingly become parties to the Statute
in the first place. While the Prosecutor and the Chambers clearly are not
bound to take any particular action in response to threats by a State to
withdraw from the Statute, it may be argued that it would be contrary to the
intentions of the Statute for the organs of the Court to remain totally oblivi-
ous to any expressions of dissatisfaction by States Parties. 12
Of course, it would be inherently contrary to the integrity of the sys-
tem for any organ of the Court to be influenced by threats of a State Party
to withdraw from the Statute if a particular verdict is not reached in a par-
ticular case. However, that does not necessarily mean that it would be con-
trary to the integrity of the system for organs of the Court to take into ac-
count the views of States Parties (or indeed, even non-States Parties) in re-
lation to more general matters of prosecutorial policy. It is noteworthy, for
instance, that a statement of Canada at the Assembly of States Parties in
December 2018, while criticising “politically motivated withdrawals”,
11
Roger S. Clark, “Article 127”, in Otto Triffterer and Kai Ambos (eds.), The Rome Statute of
the ICC, third edition, Nomos, 2016, mn. 1.
12
Ibid., pp. 5–6.

went on to call for “an exit strategy for ongoing preliminary investigations
where the evidence available does not support the timely or successful
prosecution”, adding that “[k]eeping these cases active is not an efficient
use of Court resources regardless of the political price of their withdraw-
al”. 13
This leads to consideration of a further difference between domestic
legal systems and international criminal courts and tribunals, which is that
international criminal courts are very selective in the prosecutions that they
bring. In domestic legal systems, the general position tends to be that all
cases are prosecuted where there is sufficient evidence to justify it, unless
there is some specific reason why it is not in the interests of justice to do so.
On the other hand, in the case of an international criminal court, there is
inevitably evidence of more crimes by more apparent perpetrators than
could ever be practicably prosecuted, thus requiring decisions to be made
as to which persons should be prosecuted for which particular crimes.
Again, it might well be contrary to the integrity of the system if political
decision-makers sought to influence which specific persons should be
prosecuted on which specific charges. However, it does not necessarily fol-
low that it would be inconsistent with the integrity of the institution for po-
litical actors to seek to persuade organs of the Court, for instance, that there
is good empirical evidence that a focus on certain types of crimes would
have the greatest effect of promoting peace and reconciliation in a particu-
lar post-conflict State, or would have the greatest effect in deterring the
commission of future crimes under international law.
Questions of fundamental importance thereby arise as to the appro-
priate limits of the matters within the international criminal justice system
that may or should appropriately be regulated or influenced by political
actors – and the line beyond which political influences cease to be proper
and become a threat to the integrity of the institution. A related issue is the
question of who has responsibility for recognising that this boundary has
been crossed, and for doing something about it. That in turn leads to the
further question of exactly what should be done about it. The answers to
these questions will not necessarily be uncontroversial.
13
See ibid.: “In the case of the Specialized Agencies, a custom has perhaps developed that that
States explain why it is that they are withdrawing, in order to give the entity an opportunity
to alter any course of action that the withdrawing State finds unacceptable”.

Although the theme of the conference and this book has been indi-
vidual integrity rather than institutional integrity, in any discussion of polit-
ical influences on the criminal justice process, the two inevitably overlap. A
political body seeking to influence the judicial or prosecutorial activities of
an international criminal court will likely focus its efforts on a judge or the
judges collectively, or on the prosecutor. It is the actions of those individu-
als in responding to such forces that will shape the integrity of the institu-
tions themselves. Institutional integrity therefore requires those individuals
to have an appreciation of what responses to such influences would be ap-
propriate or inappropriate, as well as a willingness and ability to act ac-
cordingly.
An essential step in preserving the integrity of the international crim-
inal justice system in the face of political exposure is thus to achieve a
common understanding of the appropriate role of political decision-makers
and its limitations. In the absence of such a common understanding, it is
hard for individual prosecutors or judges to know if they are appropriately
maintaining their own independence and integrity or not.
A worthwhile project for the future would be to try to establish some
kind of guidelines on these issues. Such guidelines, if formulated in calm
deliberation following full consultation and debate, would no doubt be of
great assistance to the prosecutors and judges of international criminal
courts. As well as being a point of reference for prosecutors and judges to
explain and justify their responses in particular cases, such guidelines may
assist in deterring inappropriate political pressures from being exerted in
the first place.
It is beyond the scope of this contribution to consider the detailed
process by which such guidelines might be adopted, let alone what the con-
tent of such guidelines might be. Addressing the issues above may well
prove to be a complex and difficult task. That, if so, would underscore the
need for a major initiative in this area. Preservation of the integrity of the
international criminal justice system is fundamental. If there are any uncer-
tainties about precisely what this requires, energetic and committed efforts
should be made to resolve them.

32
______
Some Reflections on
David Re *
In 2013, I wrote a short article with the bright and cheery title of “The
Glass is Half-full for International Criminal Law”. 1 Revisiting the topic
seven years later, however, my then more youthful sanguinity is now a far
more cautious optimism. This results from intervening personal experienc-
es and some institutional and political developments. My purpose here is to
briefly explore some of these issues.
Consequently, in sharing some of these personal experiences as I do
below, and my reflections on integrity in international justice generally, my
hope is that these concrete examples may inform where normative but
nonetheless more abstract notions may struggle. 2 The combination of expe-
rience and observation may help to illuminate some institutional obstacles
and challenges. The more important aim here, though, is to pose the slight-
ly more pessimistic question of whether too many structural impediments
exist to achieve a level of integrity that can ever match the high internal
and external expectations for international justice.
32.1. No International Justice System Exists
Comparing the national and international, and using the national as a pos-
sible model is useful, although the differences between the two are quite
*
David Re is the Presiding Judge of the Trial Chamber of the Special Tribunal for Lebanon.
(since 2013). Before that he was an international judge of the Court of Bosnia and Herze-
govina in Sarajevo and a prosecuting trial attorney and senior prosecuting trial attorney at
the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) in The Hague. He
has worked in international justice institutions since 2002. In Australia, between 1986 and
2001, he worked as a barrister, a prosecutor and a solicitor in private practice, and as a re-
search officer for the New South Wales Attorney-General’s Department. He was an NGO
observer at the negotiations for the Rome Statute of the International Criminal Court in 1998.
He has also legally consulted for the OSCE, and the UNDP in South Sudan.
1
David Re, “The Glass is Half-full for International Criminal Law”, in Global Policy, 2013,
vol. 4, no. 3, p. 317.
2
Some of these are eloquently expressed in chapters in this book such as Hans Corell’s Chap-
ter 5 (“The Dag Hammarskjöld Legacy and Integrity in International Civil Service”).

pronounced. Essential to understanding the dimension of the issue is that,

unlike in national justice systems, no international justice system as such
exists.
The various permanent and temporary institutions do not operate
within the framework of a coherent functioning justice system. Each insti-
tution stands alone. 3 The international criminal courts and tribunals, for
example – hybrid, ad hoc or permanent – are simply trial courts with a sin-
gle level of appeal that operate as self-functioning institutions outside of a
wider justice system. This dislocation from a true justice system, in my
view, lies at the heart of the challenges in developing and maintaining insti-
tutional integrity, which includes that of its personnel. And central to this is
that no outside appellate oversight mechanisms exist.
32.2. Some Personal National Experiences
To compare the national and international, and looking first to the national,
my personal starting point was in Australia where I began my legal career.
While working as a lawyer and prosecutor in the 1980s and 1990s, and
then as a self-employed barrister, I rarely encountered ethical challenges or
matters involving personal or institutional integrity. Most involved dealings
with the police and the differing professional ethics between the legal pro-
fession and those of a disciplined paramilitary force. Lawyers are bound by
their professional codes and subject to disciplinary action upon complaint,
and unlike police have independent duties of honesty and candour to the
courts.
In Australia, as opposed to in the international criminal courts and
tribunals, prosecuting lawyers (generally) are not investigators and rely up-
on the police to gather evidence. While working as a prosecutor I encoun-
tered some corrupt police officers; some were exposed in a lengthy public
commission of inquiry, and subsequently tried and imprisoned. The com-
mission laid bare police corruption that in some cases had become institu-
tional, but generally was confined to specific units. In its aftermath, much,
but by no means all, was cleaned up.
The prosecutor’s office where I worked, by contrast, almost never
experienced what could be considered as corrupt conduct, although like
3
The international human rights courts, though, are in a slightly different category at the peak
of a treaty-based system applying international human rights law, by making declarations of
rights when domestic remedies are exhausted.

32. Some Reflections on Integrity in International Justice
any other comparable institution naturally it experienced individual ethical

lapses. Generally, though, ethical standards were tacitly enforced by virtue
of the professional codes, the internal office systems, and the wider institu-
tional framework, in which the office was an integral component of the jus-
tice system. Many factors contributed to this tight internal and external in-
stitutional integrity. On a personal professional level, lawyers are admitted
to practice and must complete ethics courses. Personal professional reputa-
tion in a national system is critical. Like in any field of professional spe-
cialisation, prosecutors and defence lawyers are reasonably known to each
other. Their professional universe is quite small and people talk. They are
on public display in their court work. They are reasonably well remunerat-
ed. Moreover, judges enforce ethical standards.
Maintaining personal professional reputation in the national ‘pond’ is
fundamental. Institutional integrity can become self-regulating as a result
of internal peer pressure to act professionally and with integrity. Nationally,
unlike in the international sphere, an integrity check for a job applicant is a
mere telephone call away. Someone always knows something good, bad or
indifferent about the candidate.
On a wider institutional level, the prosecutor’s office is part of a
structure in which other institutions function together to provide integrity
to the wider system. A critical media can scrutinise judicial and other deci-
sions and conduct. Parliamentary committees have oversight over some
aspects of the justice system. Independent complaints and disciplinary
mechanisms exist – for lawyers, police, judicial officers and civil servants.
Judicial review is available for many administrative decisions. Courts can
enforce rights – including those of staff and officials – with orders, injunc-
tions and declarations. Statutory auditors examine the accounts of public
institutions and publish full reports. Justice institutions must publish annual
reports that include detailed and audited financial information. An inde-
pendent ombudsman’s office may inquire into alleged misconduct. Stand-
ing anti-corruption bodies have powers of investigation and compulsion
against self-incrimination, and may hold public hearings. Some of these
institutions also have educative functions.
Taken together, they represent a sophisticated, interwoven body of
norms that operate to provide legitimacy to the justice system as a whole.
This builds a degree of transparency into the system and, unlike in interna-
tional justice, a properly functioning national justice system is not politi-
cised.

32.3. The Institutions of International Justice

The institutions of international justice in which I have worked, however,
do not resemble anything that I experienced in my formative legal years.
On a personal level, this was evident when I entered the international sys-
tem in 2002, first as a prosecuting trial attorney in the Office of the Prose-
cutor of the International Criminal Tribunal for the Former Yugoslavia
(‘ICTY’).
An obvious difference with the national level was that the ICTY’s in-
stitutional framework had neither the internal nor external safeguards guar-
anteeing integrity that are built in to any properly functioning national jus-
tice system. At that stage, the ICTY and the International Criminal Tribunal
for Rwanda (‘ICTR’) were the only functioning international criminal
courts or tribunals. Both were temporary and within the umbrella of the
United Nations (‘UN’), which, although having its own ‘principal judicial
organ’ in the International Court of Justice, did not have the dedicated jus-
tice bureaucracy of national systems. Neither ad hoc institution was part of
a justice system. Most of the other accompanying national institutional fea-
tures mentioned above, including the independent external oversight pre-
sent in those systems, were also absent.
On another level I was also immediately struck by several stark dif-
ferences with legal practice in Australia. These included the dramatic dis-
similarity in the quality of the investigations (which was generally much
lower at the ICTY), and the more casual attitude towards professional obli-
gations, including codes of conduct. Such was the Office’s disjointed and
fragmented nature that its self-regulating behavioural code was weak.
Some examples are provided below.
The reasons for this are complex, but my sense generally was that
this politicised ad hoc institution lacked the internal motivation that could
foster a culture of rule- and ethics-based integrity. This is aside from the
deficit of external integrity safeguards in the UN system. Inevitably, this
external shortfall must negatively influence internal conduct, and hence
institutional integrity.
The transient and political nature of such an institution, and indeed
most other international justice institutions – the International Criminal
Court (‘ICC’), which is permanent but nonetheless operates in very politi-
cal waters, is an obvious exception – must contribute to this. Working, for
example, as a lawyer, investigator or analyst in an international justice in-

stitution is not generally viewed as a long-term career move. It certainly is

not for judges, all of whom have limited terms of office. By contrast, a na-
tional civil servant can have a career path with a natural progression in-
volving internal promotion and moving between different agencies, with
career breaks and work exchanges.
Most who work in the various international institutions are passing
through in a manner different to comparable national workplaces, especial-
ly at the hybrid and ad hoc institutions. This creates a phenomenon in
which personal and professional reputation – which is so significant in
one’s own national system – regrettably, becomes less important so far
from home. The consequences of breaching ethical standards may be close
to non-existent.
Internationally, codes of professional conduct are rarely invoked. As
a judge, I have seen lawyers comporting themselves in a manner that I do
not believe they would dare replicate before the courts of their own coun-
tries. And in my experience, international judges seem to have a somewhat
touching shyness towards enforcing the codes against transgressing law-
yers, even in issuing the routine warning that would be expected in a do-
mestic court. The price of this timidity in ‘keeping the peace’ with advo-
cates can degrade professional standards and thus institutional integrity.
The same can be said of the institutional practice of employing peo-
ple who are not admitted to national legal practice, and hence whose pro-
fessional conduct essentially cannot be regulated through professional
codes. Similarly, assigning a lawyer as defence co-counsel to defend an
accused charged with committing international crimes, but one who has
never appeared in court or had a client, must diminish confidence in an in-
stitution, and hence its overall structural integrity. But these three examples
could be easily rectified by appropriate institutional action.
32.4. As an International Prosecutor: Some Institutional Integrity
Issues
Giving some specific examples of ‘lapses’ in institutional integrity that I
have personally encountered may assist, as it could provide an insight into
the dimension of the issue.
In the first instance, as an international prosecutor at the ICTY, in a
case to which I was assigned, I was charged with examining the totality of
the evidence against the two accused. It became apparent that the prosecu-
tion had at most a prima facie case against the two accused on two of the

seven indicted counts (one count for each accused). The evidence was oth-
erwise insufficient to proceed to trial. Further investigation with an ad-
journment, or alternatively abandoning five counts, was required. A memo-
randum to this effect was prepared, bearing the signatures of the four pros-
ecuting lawyers. A very senior official, however, instructed the case to pro-
ceed, notwithstanding this assessment, and then, additionally, neglected to
inform the Prosecutor of the existence of the memo. The case commenced.
I moved to another one. As I believed that the Prosecutor should be made
aware of this evidentiary deficiency, I informed the Prosecutor of the true
state of the evidence. The case still proceeded, and eventually on appeal,
only two counts survived – namely, those for which there had been some
evidence at the trial’s commencement. The case should not have gone to
trial on the other counts: but it did at enormous cost to the institution and
the two accused. That this occurred reveals a major lapse in institutional
integrity. Was it avoidable? Absolutely. But why this course was taken was
never explained.
In raising this example, I recognise a counter-argument: namely, that
as a judge had confirmed the indictment it should be left to a trial chamber
at that point to determine the sufficiency of the evidence. However, against
this is that if the prosecutors in the case have formed the view that, based
on an insufficiency of evidence, ‘no reasonable prospect of conviction’ ex-
ists, the case should not proceed. I subscribe to this latter view: as a matter
of prosecutorial integrity, and hence that of the system itself, in these cir-
cumstances it is unconscionable to advance to trial.
In another case in which I was involved at a late stage, I became
aware that prosecution officials had deliberately failed to disclose to the
accused crucial exculpatory evidence during the phase of the case related to
that evidence. The suppressed evidence was disclosed only at a later point.
In a third case, the prosecution misled the Trial Chamber and the de-
fence by failing to disclose something that was highly relevant to an appli-
cation to amend an indictment. When I belatedly discovered this, I was in-
structed not to bring it to the attention of either the chamber or the defence.
Ultimately, however, no prejudice occurred as the prosecution failed in its
application, and, moreover, the accused was acquitted. Both factors, how-
ever, are beside the point regarding standing ethical obligations, especially
in something as fundamental as amending the charging instrument.
In a fourth case, in which I was the lead counsel, it became apparent
that certain investigators were being less than candid about the circum-

stances of interviewing witnesses, during which they had allegedly identi-

fied an accused person. The investigators were attempting to conceal what
had occurred. My solution was to put everything relevant to this before the
chamber and to disclose it to the defence.
In these examples, unlike in a properly functioning national system,
there was essentially nowhere to go to rectify these systemic failures. This
represents a major structural obstacle to fostering internal integrity.
32.5. As an International Judge: Some Institutional Integrity Issues
Regarding judges: almost all who I have worked with have integrity and
competence. However, and regrettably, as an international judge I have also
encountered breaches of integrity which, had they occurred domestically,
would have resulted in swift and possibly severe consequences. Some con-
duct I have witnessed could be considered as corrupt.
Shockingly, I have been on the receiving end of judges attempting to
interfere in witness testimony in a trial, and I have seen attempts to make
judicial decisions for political reasons. I have also encountered judges rou-
tinely submitting false leave returns, in effect defrauding the institution by
claiming benefits they were not entitled to receive, and subsequent high-
level attempts to manipulate the records to cover-up this institutionalised
wrong-doing. I have also seen a judge continue to sit in a case in which the
judge had an obvious conflict that should have disqualified them from fur-
ther involvement.
This reaches the point when ‘integrity lapses’ move beyond the op-
portunism of some individuals and become entrenched. At that point, the
internal processes have failed, and there is no one to report it to. I have also
encountered indifference, and worse, by the United Nations Office of Legal
Affairs – as the judicial appointing authority, and presumably for political
reasons – to these transgressions.
Judicial officers behaving in this manner in a properly functioning
national justice system would be the subject of complaint, discipline and
removal from office, and also possible prosecution with the attendant crim-
inal penalty. Such ‘lapses’ would be rightly viewed as attacking the integri-
ty of the justice system and dealt with accordingly. Internationally, however,
political considerations can intervene, resulting in the concealment of mat-

ters going to the heart of judicial integrity and, consequently, public credi-
bility. 4
Turning a blind eye to, or attempting to cover up, such transgressions
facilitates the degradation of standards and makes a mockery of the statuto-
ry requirements that judges serving in international institutions have high
moral character and integrity. As Judge Erik Møse points out,
it is important that the institution carries out thorough investi-
gations, even if the person accused of such behaviour has left,
in order to clarify whether the allegation has any factual basis
and, if so, to take necessary measures and demonstrate a rup-
ture with the past. 5
In this respect, sunlight is the best disinfectant.
Another institutional barrier to institutional integrity is the inade-
quate manner of dealing with applications to disqualify a judge from hear-
ing a matter. Lacking structural recourse to external judicial mechanisms,
international courts and tribunals must resort to using their own internal
means to decide these issues. Some use a panel of three judges (without
any appeal from the decision) while others sit in plenary to determine such
applications.
The drawbacks in having a full plenary of judges deciding applica-
tions to disqualify one or more of their own are obvious. The judges are
effectively deciding whether their judicial colleagues are actually biased or
could be perceived to be so. Further, potential future conflicts of interest
will inevitably arise, for example, an application to disqualify an entire trial
chamber may involve some potential appellate judges deciding in plenary
an issue that could reappear in an appeal. The non-appealable three-judge
panel model suffers exactly the same defects.
By contrast, in some national systems the judge first decides whether
they should continue in the case, and the applicant may appeal an adverse
decision to another court. This model, in my view, provides greater institu-
tional integrity and hence credibility. Again, the fact that the institutions
stand alone, unlike in national systems, with no appeal possible beyond the
4
Politicising the disciplining and removal of judges must be avoided. See for example, Re-
port of the Special Rapporteur on the independence of judges and lawyers, Diego García-
Sayán, A/75/172, 17 July 2020.
5
See Erik Møse, “Reflections on Integrity in International Criminal Justice and Regional
Human Rights Courts”, Chapter 19, Section 4 (“Personal Integrity – Some Illustrations”).

court itself, provides a structural impediment to achieving institutional in-

tegrity and wider credibility.
Also connected with this is that conflicts of interest in international
settings, in my personal experience, also seem to assume less importance
than in national systems, no matter how blindingly obvious they may be to
an outside observer.
To give another minor illustrative example of a lapse in institutional
integrity – and one potentially explicable by cultural institutional factors –
in the Court of Bosnia and Herzegovina I once had a national prosecutor
casually drop by into my office, interpreter in tow, to ask me if I had any
helpful hints on what he should say in his closing submissions in the case. I
firmly but politely explained that ‘no’ this was not how things were done.
I emphasise that these are only some of the things that I have person-
ally experienced, and, moreover, that this is only what I have experienced
(as opposed to having heard about). Logic dictates that more must be out
there. But I also highlight that the overwhelming majority of my colleagues
in international justice are ethical, competent and professional. The thread
running through these negative examples speaks more to the institutional
failures that permit them.
Finally, the reports of corruption at the Extraordinary Chambers in
the Courts of Cambodia are legion. By contrast, in the cases of the Kosovo
Specialist Chambers, the ICTY and ICTR, political decisions were made
not to include judges of the countries from the conflict. This model, which
can go a long way to preserving institutional integrity, is one worth emulat-
ing in future hybrid institutions.
32.6. The Political Dimension
Coming to an important structural obstacle in the political dimension, it is
emphasised that all international justice institutions – including UN fact-
finding missions and accountability mechanisms – have political roots. The
appointment and election of senior officials, including prosecutors and
judges, is an intensely political process, and the winners are not necessarily
appointed on merit, although of course many excellent candidates manage
to get through the process.
An example of a major political and legal institutional integrity fail-
ure in a fact-finding mission occurred in the United Nations International
Independent Investigating Commission (‘UNIIIC’) from 2005 onwards.
Successive UNIIIC Commissioners remained publicly silent while four
high-level prisoners, who had been detained on the Commission’s request,

were imprisoned in Lebanon without charge for almost four years. This
continued despite the collapse of the evidence founding their arrests, and
the UN Human Rights Council’s Working Group on Arbitrary Detention
finding that the continued detentions were arbitrary and thus breached Leb-
anon’s obligations under the International Covenant on Civil and Political
Rights. 6
This episode produced a mixed result for international justice. On
one hand the UNIIIC as a UN international justice institution failed a basic
integrity test, while another UN institution – acting as a watchdog and in-
quirer – passed it with flying colours. The political dimension, however,
triumphed until the formal establishment of the Special Tribunal for Leba-
non, and its Pre-Trial Judge ordering Lebanon to immediately release the
four. This example demonstrates how political considerations can outplay
those of international human rights law and institutional integrity.
Directly connected with the political nature of international justice,
and international criminal justice in particular, is that some personnel – in-
cluding lawyers – have a dual but unrevealed role in working for their gov-
ernment in one form or another while simultaneously being employed by
the institution. Loyalties are thus divided in a manner that will be rare in a
domestic criminal justice system. This of course infringes the formal con-
tractual rules and statutory obligations of neutrality of international civil
servants, and on its face at least, would appear to undermine institutional
integrity.
This goes hand in hand with the political nature of the institutions
and their work, 7 and in particular in international criminal justice in inves-
tigating targets and situations or cases. Irrespective of what countries pub-
licly say about supporting the aims of international criminal justice, for ex-
ample (‘ending impunity’, ‘bringing justice to the victims’, ‘ensuring that
this never happens again’, and so on) – and while of course there are very
vocal exceptions, such as the Trump administration’s opposition to specific
ICC investigations – numerous state and non-state actors have motives to
6
Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cul-
tural Rights, Including the Right to Development. Opinions adopted by the Working Group
on Arbitrary Detention, A/HRC/10/21/Add.1, 4 February 2009, Opinion No. 37/2007.
7
I am excluding the work of the permanent international human rights courts here, although
all applications have a state as a respondent, and states naturally desire a favourable out-
come in each case against them.

further, neutralise or even to end investigations or prosecutions. This can

include influencing the evidence and the choice of defendant.
A perusal of a trove of leaked government cables – assuming their
authenticity, of course – revealed extensive contact between court and tri-
bunal employees and appointed and elected officials, and government offi-
cials. The government officials are merely going about their normal busi-
ness in assisting the institutions, while obtaining information and attempt-
ing to influence what the courts and tribunals do. Much in the cables is of
the mundane – meetings, briefings, issues of co-operation and so on, all of
which is properly within a court’s stated mandate. The courts rely on these
contacts for their survival. Some contacts, however, greatly exceed this and
reveal a level of ‘outreach’ going well beyond the contractual, in certain
instances appearing to breach the normative principles against taking in-
structions from outside sources.
This is an obvious but unresolvable issue of institutional integrity,
but one coming to light only by the fact of publication. The usual employ-
ment ‘solution’ here would be to terminate the services of such an official.
But as they will not be found out, this will not happen. Nothing – codes,
contracts, exhortations, pleas to ‘do the right thing’ – can prevent officials
with divided loyalties from so acting. It may be why they are there. Only
the gullible could believe that there is a solution to this, short of an en-
forceable international agreement to refrain from doing this. But that, like
trying to agree on an international definition of ‘terrorism’, will surely nev-
er happen.
A classic example of the interplay between international politics and
those of international court officials was uncovered in 2017 when ostensi-
ble communications between the first ICC Prosecutor and French officials
revealed that he had sought the detention of the former president of Côte
d’Ivoire, Laurent Gbagbo, many months before seeking to open a prelimi-
nary investigation into any situation. Assuming that the content of the
hacks or leaks are correct – and it appears that none of those named in the
documents have either confirmed or denied their accuracy – it goes without
saying that, irrespective of the allegations, a prosecutor cannot seek a per-
son’s detention without a lawful basis to do so, such as a court-authorised
arrest warrant. This lack of due process strikes at the heart of institutional
integrity. Maybe these were the (alleged) actions of a rogue top official, but
while institutional safeguards theoretically exist to prevent these types of
misdeeds, refraining from acting in such a manner is very much a matter of

personal and professional integrity. Policing such personal misconduct is

virtually impossible.
Because of the political nature of judicial elections and appointments,
the international system is also ill-equipped to deal with the examples of
judicial wrong-doing described above. (Ironically though, the public judi-
cial election process is usually more transparent than the national selection
of candidates for nomination for election.) An element of protecting na-
tional interest may also intrude – at the very least in avoiding national em-
barrassment – as most judges are state-nominated. While some formal
mechanisms exist, they need be properly used in order to remedy some of
the things described. This requires institutional will and perseverance.
There is no easy solution to this political dimension, one that lies at
the core of the integrity of international justice. States have political objec-
tives that may either coincide or conflict with those expressed in the stat-
utes of the courts and tribunals and as put into practice. This will never go
away. Beyond recognising that it goes with the territory of international
justice, little can be done internally other than maintaining vigilance, and
attempting to erect internal barriers that may help to resist irregular and
improper outside pressures. However, structural changes including intro-
ducing truly independent external oversight – and additional independent
judicial protections – would make a huge difference. But this requires polit-
ical will and consensus.
32.7. Are There Too Many Structural Impediments to Achieve
Institutional Integrity? Some Suggestions
This leads to my initial question of ‘whether too many structural impedi-
ments exist to achieve a level of integrity that can ever match the high in-
ternal and external expectations for international justice’?
Fundamental to the debate about integrity in international justice is
recognising that some international institutions are structured in a way that
makes it difficult to attain the normal levels of institutional integrity that
are so vital for the credibility of national systems. It is naive to think that
states will forego forms of attempted influence over the international insti-
tutions they have created and in which they have so much invested. A pes-
simist will accordingly conclude that that this is beyond change, and that
reforming internal mechanisms could provide the most realistic prospects
for success.

Prevention, though, is clearly preferable to a cure. In the 1980s, a

centrist Australian political party had a very popular catch cry, inelegantly
expressed as ‘Keep the bastards honest’. This slogan’s noble aim, I believe,
can be achieved both internally and externally in international justice, but
this will not be easy.
Internally, encouraging a thriving culture of transparency and ques-
tioning and reflection is an obvious step towards this aim. Flatter and less
authoritarian hierarchies can promote this.
Good behaviour must be encouraged, but without overbearing vigi-
lance. Officials and staff must be able to get on with their jobs without fear
of over-surveillance or interference in their work. By analogy, partners in
law firms owe fiduciary duties towards each other, and this and the notion
of a partnership provides the motivation for self-regulating professional
and personal conduct: each partner is essentially watching the others.
Independent complaint and disciplinary mechanisms are also part of
the solution. But even there, caution must be exercised. I have seen staff
being ‘weaponised’ to bring complaints disproportionate to the alleged
transgression, in circumstances where mediation or counselling would have
been the more appropriate course. Truly independent ethics offices in
which officials and staff could confide and seek advice could assist.
Externally, standing independent oversight mechanisms are essential,
like the examples noted above of auditors, ombudsman, and the availability
of judicial administrative review. ‘Independent’ is the key term here. Exter-
nal consultancy review can be helpful, especially in identifying matters that
may otherwise not come to light. However, external ‘experts’ briefly para-
chuting themselves into a complex international institution such as the ICC,
for example, with broad terms of reference requiring rapid reporting, while
of some use, can probably achieve no more than window-dressing and rec-
ommendations that merely, in many cases, state the obvious.
The lack of external legal mechanisms to enforce legal rights is a key
impediment to achieving institutional integrity. The institutions have im-
munity from civil suit under international conventions and host state
agreements. International justice officials and staff, for example, thus have
no court before which they can seek redress in respect of legal rights that
do not involve an adverse administrative decision. For this reason, I advo-
cate either providing the existing courts and tribunals with these ancillary
powers – but through establishing separate court divisions with dedicated

judges – or, preferably, by creating legally enforceable judicial mechanisms

that are independent of the institutions. This should include applications to
disqualify judges. These steps could help neutralise some of the political
factors described above. As a suggested solution, just in The Hague, for
example, there are more than enough judges in the various international
justice institutions to jointly perform these functions for other courts and
tribunals. Allowing this would require amending the statutory instruments
of these institutions. This must be achievable. It would also create a form
of connected international justice.
International judges also lack statutory whistle-blower protections.
This is a structural issue. The UK Supreme Court has unanimously ruled
that judges are entitled to the same whistle-blower protection as employ-
ees. 8 This precedent should be embraced. Court and tribunal statutes and
internal regulatory documents should guarantee such protections to judges
and mandate formal enforceable assurances against retaliation. For staff,
whistle-blower protections are often ‘toothless tigers’. Those of the United
Nations are a classic case in point. Whistle-blowers are typically viewed
with suspicion and as trouble-makers (which some of course are) rather
than ethically-minded individuals attempting to report wrong-doing. It is
much easier to turn a blind eye, look the other way, or simply decamp if the
stench overwhelms, rather than offering oneself as a martyr at the altar of
moral and legal rectitude. Remedying this, however, should be relatively
easy. The solution is both cultural and regulatory. There are numerous na-
tional models for both that are worth emulating.
32.8. Conclusion: Cautious Optimism Tempered by Realism
No system can attain institutional perfection, but the experiences described
above demonstrate avoidable wrongdoing that systemic failures either
permit, or allow to flourish. Some should be quite preventable by the use of
internal regulatory mechanisms and promoting a culture of integrity and
honesty. But this requires leadership and vigilance. If the leadership lies at
the root of the problem (like in the Gbagbo example above) – and especial-
ly if a leader has a long term ahead of them – we then go straight back to
the structural and normative, and the need for strong internal and external
regulatory mechanisms that can address these short-comings. This would
include, as suggested, creating independent legal mechanisms to enforce
8
United Kingdom, Supreme Court, Gilham v. Ministry of Justice, Judgment, 16 October 2019,
UKSC 44 (2019).

legal rights. And like many others, I add that much greater care must be
taken in nominating suitable officials to serve in international justice insti-
tutions. Many reforms in this respect have been proposed, but short of
somehow magically removing the political dimension from the appoint-
ment, nomination and election process – or injecting into it a novel level of
transparency – probably little will change.
To conclude, attaining and maintaining adequate levels of integrity is
difficult. It requires recognition of the structural obstacles, and some ad-
justment of expectations to make achieving these goals even a semi-
realistic aim. External structural change is crucial. I remain an optimist but
now with a glass swishing between half-full and half-empty, depending on
the viewing angle.

INDEX
Aristotle
A aesthetics, 90
Cardinal Virtues, 88
Adab Al-Qāḍī, 121 On the Parts of Animals, 59
integrity, 118 Politics, 58
Adorno, Theodor Republic, 59
Aesthetic Theory, 500 virtue, 87
Aeschines, 62 armed conflict
democratic virtues, 64 displacement, 312
Agramunt, Pedro, 176 low-intensity, 312
AI Wei Wei, 507 Ashworth, Andrew, 647
AidToo (#) movement, 536 Assange, Julian
Aimee, Jean-Claude, 1072 torture, 481
Akay, Aydin Sefa, 919 Australia
arrest, 921 Community Protection Act, 293
conviction, 925 justice system, 1126
High Commissioner for Human Rights (UN), Kable case (High Court), 293
922 Azerbaijan
immunity (UN), 923, 932 Council of Europe, 158
non-reappointment, 930
Aksar, Yusuf, 926
Ala Al-Deen Al-Taraabulsi, 111 B
Alexander, Jeffrey, 505 Bagosora, Théoneste, 1023
al-Fairūzābādī, 102 Ban Ki-moon, 923, 934
Alī Ibn Abī Ṭālib, 99, 112, 116 Bangalore Principles of Judicial Conduct, 93,
Mālik Al-Ashtar, letter to, 135 103, 231, 242, 256, 265, 1049
Message to the Judiciary, 150 accountability, 1049
Al-Mug̲h̲nī Commentary (UNODC), 232, 257
integrity, 118 effective implementation, 1050
Al-Shahīd Al-Sadr Judicial Integrity Group, 231
Adab Al-Qāḍī, 112 Barr, William, 8
Ambos, Kai, 648 Basic Principles on the Independence of the
American Bar Association Judiciary, 231, 242, 753, 754, 942, 1033
documentation (international crimes), 623 adoption, 1046
Model Code of Judicial Conduct, 1011 Article 2, 131
Annan, Kofi, 4, 528 Preamble, 1038
Aquinas, Thomas, 493 Bathurst, Tom, 1028
virtue, 87, See also Cardinal Virtues Bensouda, Fatou, 7
Arbour, Louise, vii, 412 code of conduct (ICC-OTP), 1097
integrity, 475 Statement on the Bemba Appeals Chamber's
International Criminal Tribunal for Rwanda, decision, 302
418 Bergsmo, Morten, iv, vii, xv, 279, 309, 399,
International Criminal Tribunal for the 404, 421, 628, 634, 920, 947
former Yugoslavia, 475 Faustian curtain (integrity), 42
leadership, 418 Bleasdale, Marcus, 508
Aristophanes, 59, 60 Blewitt, Graham, 419

body language. See posture Article 8, 553

Bogoeva, Julija, 485 Article 97, 214
Bolt, Robert Article 98, 214, 928
A Man for all Seasons, 433 Article 99, 214
Bolton, John, 5, 1077, 1090 integrity, 215, 929
Bonomy, Iain, 456 neutrality, 519
Lukić case (ICTY), 460 Secretary-General, 928
Bosnia and Herzegovina Chatham House
Nikolić, arrest of, 731 Milestones in International Criminal Justice,
Boutros-Ghali, Boutros, 1066, 1070, 1072 972
Bowers, Terree A., iii Choi, Jonathan, 1009
Brammertz, Serge, 416 Chrétien, Jean-Pierre
International Criminal Tribunal for the Les Médias du Génocide, 1005
former Yugoslavia, 476 Christianity
leadership, 420, 476 ethics, 86
Brandeis Institute for International Judges, 221 humanism, 182
Brazil integritas (meaning), 82
Moro, Fernando Sérgio leaks, 482 More, Thomas, 169, 184, 199
Brodowski, Dominik, 668, 724 reason, 87
Buckley-Zistel, Susanne, 235 virtue, 90, See also Theological Virtues
Burgh House Principles, 806 Christie, George, 688
Bush, George W., 8 Church of England, 173, 203
independence, 152
Cicero
C De officiis, 73
Calhoun, Cheshire, 276 For Cornelius Balbus, 74
Çali, Basak, 495 For Lucius Murena, 78
Calvo-Goller, Karin, 708 Tusculan Disputations, 72
Canada Verrine Orations, 75
Rothman case (Supreme Court), 655 Code of Good Administrative Behaviour (EU)
Cardinal Virtues Article 11, 596
etymology, 88 Article 8, 596
Fortitude, 90 Colombia
Justice, 89 International Criminal Court, 262
Prudence, 88 Revolutionary Armed Forces of Colombia,
Temperance, 90 262
Case Matrix, 424 colonialism
CaseMap, 424 double standards, 248
Cassese, Antonio, 1091 Commission for International Justice and
Castaldo, Fabio Massimo, 1092 Accountability, 626
Central African Republic entrepreneurial justice, 626
International Criminal Court, 270 recruitment, 429
Movement for the Liberation of the Congo, Syria, 626, 733
301 universal jurisdiction cases, 615
Centre for International Law Research and work ethics (staff), 636
Policy (CILRAP), xiii, 1, 147, 845, 916 Conference on Security and Co-operation in
Charter (UN) Europe
Article 100, 213, 814, 824, 833 Copenhagen Document, 154
Article 100(1), 928 Constitution (INTERPOL)
Article 101, 214, 515, 814, 833, 929 Article 3, 161
Article 101(3), 553 Convention against Corruption
Article 7, 927 Article 11, 141

Index
Cooley, Craig, 705 International Criminal Tribunal for the

Corell, Hans, xi, 10, 220, 1089 former Yugoslavia, 476
corruption leadership, 418
Council of Europe, 158, 159 Lopes-Terres, Patrick, 413
Ethics Office (UN), 538 Muna, Bernard, 413, 418
European People’s Party, 160 Delić, Rasim, 958
International Criminal Court, 6 Demosthenes
international criminal justice, 170, 475 On the Crown, 65
Sharí‘ah, 141 Dennis, Ian, 654
United States, 606 Des Forges, Alison
Council of Europe, 153 Leave None to Tell the Story, 1005
corruption, 158, 159, 176 Detienne, Marcel, 48
European People’s Party, 160 Dewey, John, 491
Parliamentary Assembly, 156, 176 Diamanduros, Nikiforos, 596
Protocol 14 (ECHR), 800 Dicey, Albert, 657
Recommendation (independence, efficiency digital baroque, era, 496
and role of judges), 1048 disciplinary measures
criminal procedural law codes of conduct, 877, 894
addressees, 669 codes of conduct (judicial ethics), 741, 752,
exclusionary rules (evidence), 618, 650, 664, 774
673, 687, 693, 702, 707, 721, 723 disqualification, 142
expectations, 702 independence, 1137
fair trial legitimacy, 654 Independent Expert Review (ICC), 36, 37
remedy, theory of, 651, 663, 688, 722 International Criminal Court, 320, 330, 774,
rule of law, 693 783, 785, 865, 867, See also International
substantive law, relation with, 670, 694 Criminal Court
critical thinking, culture of, 845 International Residual Mechanism for
criticism Criminal Tribunals, 776, 777
consequences, 167 Kosovo Specialist Chambers, 775, 777
constructive, 154 nullum crimen sine lege, 846
More, Thomas, 167 removal (judiciary), 143, 787
Cromwell, Oliver, 209 Sharí‘ah, 142
customary justice weaponisation, 1137
Afghanistan, 252 Dittrich, Viviane, i, x, xi, xv, 47, 811
Liberia, 253 double deontology
Malawi, 253 horizontal, 899
Pakistan, 252 vertical, 898
traits, 251 Doyle, Arthur Conan, 615
ubuntu, 254 Du Bois, William, 433
Duff, Antony, 647, 652, 676, 698, 716
Duff, Peter, 653
D Durkheim, Émile, 506
Damaška, Mirjan Dworkin, Gerald, 643
criminal procedure, 713 Dworkin, Ronald
The Faces of Justice, 682 Law's Empire, 291
Dan-Cohen, Meir, 673
de Serpa Soares, Miguel, 935 E
Del Ponte, Carla, 412
integrity, 476 election (officials). See recruitment
International Criminal Tribunal for Rwanda, election observation
418 bias, 153, 154

Conference on Security and Co-operation in Forsyth, Justin, 540

Europe (CSCE), 154 Fougner, Jan, 41
Copenhagen Document (CSCE), 154 France
Council of Europe, 156 conditional liberation, 1018
integrity, 157 National School for the Judiciary, 1059
United Nations, 154 Sarkozy affair, 606
Erasmus of Rotterdam, 152 Fromm, Erich, 487
Erdoğan, Recep Tayyip, 919, 930 Fuller, Lon, 661
Ethics Resource Centre Fyfe, Shannon, 10, 636
National Business Survey, 892, 894
Euripides
Orestes, 67 G
European Center for Constitutional and Gaddafi, Muammar, 1109
Human Rights, 629 Gaddafi, Seif al-Islam, 1109
European Charter of Fundamental Rights Gardener, Maggie, 1061
Article 41, 593 genocide
European Convention on Human Rights definition, 503
Article 21(1), 804 hate speech, 991
Article 3, 804 incitement, 990
Article 6, 697 Germany
principles, 796 Code of Criminal Procedure, 668, 684
European Court of Human Rights exclusionary rules (evidence), 693
establishment, 800 Hassan case, 629
expectations, 798 International Criminal Court, 7
Gäfgen v. Germany case, 657 Gernet, Louis, 49
judicial functions, 772 Giles, Peter, 191
European Investigative Collaborations. See Gitelson, Alfred, 1022
International Criminal Court, Moreno- Gitelson, Bruce, 1022
Ocampo, Luis Golden Rule, the, 86
European Union Goldstone, Richard J., iii, vii, 35, 38, 1066,
lobbying, 602 1091, 1104
Ombudsman. See Ombudsmen gender-related policy, 329
transparency, 601 Gordon, Gregory S., 396
exemplary behaviour, 179, 471, 812 Guidelines on the Role of Prosecutors (UN),
external monitoring, 178, 309, 808, 1137 819
Extraordinary African Chambers, 1059 Güney, Mehmet, 989
Extraordinary Chambers in the Courts of
Cambodia
convictions, 397 H
judicial conduct, 1056
judicial ethics (code), 754 Habermas, Jürgen, 663, 689
reparations, 511 Habyarimana, Juvénal, 986
victims, inclusivity of, 508 Halfon, Mark, 278
Hamilton, Alexander, 1034
Hammarskjöld, Dag, v, x, 323, 932, 948
F civil service, 977
high moral character, 518
Fair Trials (NGO), 161 impression, personal, 17
Ferencz, Benjamin B., 1094 integrity, 147, 215, 920, 977
fiat justitia ruat caelum, 828 international criminal justice, 219
Finnis, John, 492 legacy, 216, 221
basic goods theory, 502 neutrality, 215, 217
Fisher, John (Bishop), 173

Index
poetry, 222 Hobbes, Thomas

self-oblivion, 17, 949 law, coercitive power, 494
Sweden, 219 Hola, Barbora, 1023
The International Civil Servant in Law and Holbein, Hans, 433
in Fact (lecture), 213 Homer, 51
Vägmärken (Waymarks-Markings), 222, 224, Iliad, 51, 56
225 Huainanzi, 261
Hammurabi’s Code, 260 Hugo, Victor
harassment, sexual Ruy Blas, 874
appropriateness (concept), 554, 565 Human Rights Watch
Bagot v. Secretary-General case (UN), 580 International Criminal Tribunal for the
Belas-Gianou v. Secretary-General case former Yugoslavia, 619
(UN), 574 Hythloday, Raphael, 191
Cateaux v. Secretary-General case (UN),
552
Cooke v. Secretary-General case (UN), 566 I
definition (evolution), 564 Ibn Qayyim al-Jawziyyah, 115
definitions, 542, 552, 554, 555, 558 Ibn Sina
European Communities, 557 al-Burhân, 879
Five Point Plan (UN), 541 experimentation (tajriba), 879
Khan v. Secretary-General case (UN), 589 ICTY
Michaud v. Secretary-General case (UN), recruitment, 426
566, 587 Imam Al-Khaṣṣāf, 100, 129
non-governmental organizations, 537, 540 Imam Al-Ṭabarí, 100
Perelli v. Secretary-General case (UN), 582, Imam Ibn AbīʾAl-Dam, 100, 122, 123
590 Imam Ibn Qudāmah
Portillo-Moya v. Secretary-General case Al-Mug̲h̲nī, 112
(UN), 586 Imam Ibn Taymiyyah, 105
Secretary-General (UN), 545 Independent Law Commission
System Model Policy (UN), 542 non-governmental organizations, 622
UN Women, 541 Institut de Droit international, 806
UNAID, 540 Institute of Business Ethics
UNHCR, 578 Ethics at Work, 897
UNICEF, 540 integrity (aspects)
United Nations, 536, 540, 569, 585 accountability, 42, 1030, 1091
unwanted-unwelcome (concept), 554, 570 administrative, 597, 851
Harhoff, Frederik, 749, 941 appropriateness, 3
dismissal, 972 binding. See legal framework (integrity)
International Criminal Tribunal for Rwanda, bodily dimension, 82, See also posture
957 Christianity. See Christianity
International Criminal Tribunal for the civil service, 17, 210, 215, 279, 524, 931,
former Yugoslavia, 163, 951, 955 1041
removal (Šešelj case, ICTY), 952 coherence, 900
Heinze, Alexander, 10 commitment, 272, 290
Heller, Kevin Jon, 972 community, 276, 692
Hesiod competing interests, 829
Theogony, 50 compliance, 1111
Works and Days, 54 conscience, 152, 209, 323, 433, 948
Hewart, Gordon, 1036 co-operation (States), 840
high moral character, v, 10, 164, 220, 455, 489, counsel, 940, 947, 948
516, 873 courtroom conduct, 914
HO Hock Lai, 651, 655 culture of, 11, 17, 39, 812, 1128

decency, 433, 435 targets (organisational), 895

deontology, 815, 878, 898 timeliness, 265
emotional, 134, 223 transparency, 153, 597, 600
Greece, ancient, 49, 57, 63, 64, 145 truth, 48, 54, 323, 477, 888, 920, 948
Hammarskjöld, Dag, 920 universal, 260, 261, 264
harmony, 66 victims and witnesses, 834, 836, 842, 909
historical, 47 virtue, 92, See also virtue
honour, 61 West. See North, global
independence, 29, 815, 934, 1034 wholeness, 273, 290, 1022, 1030
individual, ix, 271, 288, 465, 472, 705, 873, integrity (definition)
1082 Arabic language, 117
individual-institutional, 39, 170, 173, 399, Calhoun, Cheshire, 276
1065, 1086, 1101 Charter (UN), 515
institutional, ix, 153, 162, 167, 170, 271, 288, context perspective, 646
315, 791, 815, 836, 840, 859, 933, 1096, etymology, 71, 85, 117, 275, 1030
1126, 1135 framework, 11, 13
integration, 716 French language, 1030
International Criminal Court, 738, 890, 1082, Halfon, Mark, 278
1084 Hammarskjöld, Dag, 920, 977
Islamic law. See Sharí‘ah Independent Expert Review (ICC), 35, 37
judicial, 94, 98, 119, 122, 145, 217, 232, 238, International Residual Mechanism for
244, 265, 292, 472, 791, 948, 973, 1034, Criminal Tribunals, 925
1064, See also judicial conduct Interntional Civil Service Advisory Board,
Kant, Immanuel, 172 14
leadership, 406 judicial, 98, 139, 146, 241, 472, 925
loyalty (institutional), 409, 416, 522 Latin, 14, 85, 117, 275, 920, 1030
More, Thomas. See More, Thomas lexical, 642
multiculturalism, 233, 245 object perspective, 642
national justisdictions, 1126 Organisation for Economic Co-operation
North, global, 82, 257 and Development, 538
objective, 279 personal, 176
Ombudsman (EU), 596 philosophy, 172
oppression, v., 433 procedural law, 656
organizational culture, 528, 535, 548 Rome, republican, 75, 76
pitfalls. See pitfalls (integrity) semantics, 47, 72
Plato, 66 Sharí‘ah, 118, 139
policy gaps, 846 subject perspective, 645
politicization (institutions), 169 Taylor, Gabriele, 272
private life, 76, 122, 771, 776 terminology, 47, 102, 272, 274, 435, 642,
procedural law, 653 1022
professional, 153, 174, 212, 219 integrity (pitfalls)
prosecutorial, v, 938 daily sustenance allowance, 416
reliability, 656, 703 donations, 524
research, 3 emotional, 439
resource management, 907 International Criminal Court, 607
rhetorical, 48, 57 non-governmental organizations, 537
Rome, republican, 70, 77, 81, 145 United Nations, 537
rule of law, 657, 703, 705 Integrity Project, vi, 1, 847, 1029, 1080
safeguard, 179 evolution, 2, 4
Secretary-General (UN), 927, 931 integrity, concept of, 920
Sharí‘ah, 116, 119 International Criminal Court, 1
structural, 289, 291, 294, 826, 1136 objectives, 33

Index
purpose, 9 codes of conduct, 37, 877, 893

structure, 13 Colombia situation, 262
internal monitoring, 1132 complementarity, 262
rights of investigated staff, 611 convictions, 398
International Association of Chiefs of Police criticism, 6, 165, 342, 606, 1081
Oath of Honor, 646 Darfur, Sudan situation, 416, 884
International Bar Association Democratic Republic of the Congo situation,
New Delhi Code of Minimum Standards of 416
Judicial Independence, 1044 Disciplinary Advisory Board, 330
International Centre for Transitional Justice, disclosure, 710, 883
262 draft Regulations (OTP), 333
International Civil Advisory Board, 553 Employee Benefits Liabilities Fund, 381
International Civil Service Commission, 541 establishment, 4, 311, 337
Standards of Conduct, 322, 539, 928 ethics charter, 875
International Conference of Judicial European Investigative Collaborations leaks,
Independence 151, 164
Global Code of Judicial Ethics, 1031 exclusionary rules (evidence), 709, 723, 730
International Covenant on Civil and Political External Auditor, 381, 875, 879
Rights, 1038, 1134 external encroachment, 402
International Covenant on Economic, Social fair trial rights, 729
and Cultural Rights, 1038 Financial Regulations and Rules, 346
International Criminal Court Gbagbo case, 888
administrative sources, 850 gender representation (staff), 384
Administrative Tribunal (ILO), 394, 848, geographical representation (staff), 384
852, 855, 859, 862, 864, 874 governance, 318, 390
Advisory Committee on Nominations of harassment (Administrative Instruction), 327
Judges, 1093 independence, 316
aesthetics, 508 Independent Expert Review, vii, ix, xv, 2, 35,
Agreement on the Privileges and Immunities 36, 37, 38, 40, 334, 395, 612, 848, 877
of the Court, 861 independent inquiry (Registry, 2013), 343
Al Hassan case, 735 Independent Oversight Mechanism, 36, 325,
Al Mahdi case, 510 344, 354, 380, 785, 1112
Al-Bashir case, 478, 884, 1086 Information Protection Policy, 847, 870
amici curiae, 1087 Information Security Management Forum,
Aministrative Issuances (Presidential 857
Directive), 849 integrity, 382
Anti-Fraud policy, 869 Internal Auditor, 347, 349
Assembly of States Parties, xv, 314, 400, International Standard ISO 31000
1112, 1120 2009, 358
Audit Committee, 352 Joint Crisis Management Team, 857
Audit Report (ReVision project), 364, 366 Joint Threat Assessment Group, 857
Bar Association, 97, 331 Jordan (Al-Bashir case), 1087
Bemba case, 269, 298 Jubilee Coalition (Kenyatta, Ruto), 1089
budget, 359, 388, 398 Katanga and Ngudjolo case, 667
cable ‘gate’ (WikiLeaks), 477 Katanga case, 1088
Code of Conduct (OTP), 284, 295, 881, 885, Laissez-Passer (UN), 858
1102, 1108, 1112 legitimacy, 236, 309, 313, 336, 1105
Code of Conduct for Staff Members, 324 Libya situation, 164, 398
Code of Judicial Ethics, 37, 287, 805, 886, Lubanga case, 509, 617, 709, 710, 714, 726,
1101, 1103 728, 829, 882, 1088, 1097
Code of Professional Conduct for Counsel, monitoring, 309
331, 436, 886, 889, 894, 898 moral message, 890, 901

multiculturalism, 266 aesthetics, 490, 499, 502

Muthaura case, 829 analysts, 424
nature, 38 art (perspective), 490, 507
non-State Party influence, 5, 317 case-building, 425, 429
Ntaganda case, 313, 1085 civil ‘v.’ common law, 236, 244
Office of Internal Audit, 346, 379 codes of conduct, 792, 1129
Ongwen case, 498, 735 credibility, 705
Operational Mandate (IOM), 863, 865 criticism, 808
OTP 2019-2021 Strategic Plan, 627 decision-making, 179
power dynamics, 382 distance, 797
preparatory team (OTP), iv double standards, 171, 250
Presidential Directive (Administrative efficiency, 799
Issuances), 858, 872 evidence, 733, 736
recruitment, 336, 368, 386, 387, 403 existential crisis, 396
Recruitment Guidelines for Established expectations, 401, 476, 492, 702, 1125
Posts, 853, 855 external monitoring, 179
referrals (UN Security Council), 317, 495 funding, 1118
Registrar, 351, 381, 382, 387, 402, 849 gender-based crimes, 837
Regulations of the Court, 753 governance, 21
Relationship Agreement (UN), 317 imposition, 249, 262
resource management, 1122 investigators, 423
restructuring (Registry), 374, 376 justice ‘system’, 1126
Review Conference (Kampala), 738 legitimacy, 236, 250, 484, 486, 641, 796,
ReVision project, 357, 360, 368, 373, 375, 1063
382, 385 lobbying, 484
risk management (Administrative outreach, 821
Instruction), 358 political exposure, 1117, 1123, 1134
rule of law, 479 recruitment, 915, 1133, 1139
Ruto and Sang case, 887 rituality, 505
self-interest, 1104 self-interest, 1091
sovereignty, 311 separate opinions, 802
staff appeals, 863 standards (integrity), 474
Staff Rules and Regulations, 319, 864, 875, standards (judiciary), 221, 744
877, 880, 892, 901, 1102, 1109 truth, 478, See also integrity (aspects)
standard of review, 299 International Criminal Police Organization,
States, relation with, 7, 338, 382, 392, 402, 153
1094, 1106 Red Notices, 160
Syria situation, 495 International Criminal Tribunal for Rwanda
Trust Fund for Victims, 509 Bagosora case, 1075
Uganda situation, 416 Barayagwiza case, 666, 725, 732
unequal treatment (staff), 378, 386, See also Bisengimana case, 1000
ReVision, recruitment. convictions, 397
United Nations, relations with, 316 efficiency, 799, 801
United States, 5, 6, 7, 1077, 1105 establishment, 497, 1073
victims, inclusivity of, 508 establishment (OTP), 1073
whistle-blowing policy, 325, 869 Investigations Division, 412
withdrawals, 1121 Karemera et al. case, 749
Yekatom and Ngaissona case, 735 Kayishema case, 747
Zintan crisis, 860 Nahimana case, 993
international criminal justice recruitment, 412, 427, 1074
academia, role of, 907 security concerns, 1074
access to justice, 248

Index
International Criminal Tribunal for the former Stanišić and Župljanin case, 725, 959, 960,
Yugoslavia 969, 973
Blagojević and Jokić case, 966 State influence, 1068
Blagojević et al. case, 967 Tadić case, 692, 963
Blaškić case, 966 travel funds, 1069, 1072
Borovčanin case, 999, 1000 Vasiljević case, 963, 966
Čelebići case, 911, 980, 1055 International Labour Organization
convictions, 397 Administrative Tribunal. See International
co-operation (UN), 1070 Criminal Court
establishment, 497, 906, 1066 International Nuremberg Principles Academy, i,
fair trial rights, 442, 448, 454, 731 ii, iv, v, vi, viii, x, xiii, 1, 234, 845, 916,
Furundžija case, 455, 746, 965, 1013 1029, 1080
gender-related issues, 1076 Acceptance of International Criminal Justice
Gotovina case, 970, 977 in Situation Countries, 235
influence (UN), 1071, 1072 International Protocol on the Documentation
influence (United States), 1070 of Investigation of Sexual Violence in
Investigations Division, 413, 428 Conflict, 819
joint criminal enterprise, 955, 960, 964, 971, International Residual Mechanism for
977 Criminal Tribunals
Jokić case, 963 disciplinary procedures, 742
judicial conduct, 1055 Ngirabatware case, 919
judicial ethics (code), 754 investigations
Karadžić case, 703, 1070 deontology, 639, 815
Krajišnik and Plavšić case, 441 entrepreneurial justice, 626
Krstić case, 438, 451, 506 evidence collection (illegal), 618, 648, 664
Leadership Research Team, 420, 428 extra-investigatory context, 668, 731
Lukić and Lukić case, 967 fact-finding, relation with, 616
Lukić case, 453, 967 gender balance, 831
Military Analysis Team, 420, 428 integrity, 642, 738
Milošević case, 456, 464 inter-investigatory context, 665
Mladić case, 1071 intra-investigatory context, 667, 728
Mrkšić and Šljivančanin case, 967 monitoring, 820
Mrkšić case, 967 police investigators, 637
negotiations, 1067 prioritisation, 835
Nikolić case, 731, 910 private, 616, 623, 627, 733
Pakistan, 1069 private investigator (definition), 631
Perišić case, 951, 962, 967, 975, 976, 977, quality control, 908, 912
981 resource management, 908
political encroachment, 171 Syria (private), 624, 631
Popović case, 965 trial, separation with, 706, 715
propaganda (anti-), 476 victims and witnesses, 835, 839, 840
prosecutorial conduct, 1067 witness preparation, 909
recruitment, iii, 414 Iraq
resource management, 907 Kurdistan Regional Government, 841
Šainović case, 453, 965, 968, 976 Martyrs Foundation, 841
Šešelj case, 956, 960 United Nations. See United Nations, co-
Šljivančanin case, 967 operation (States)
specific direction (requirement), 962 Irfan, Hannah, 248
Standards of Professional Conduct for Islamic law. See Sharí‘ah
Prosecution Counsel, 437 Islamic State of Iraq and the Levant, 816
Stanišić and Simatović case, 951, 963, 977 accountability, 816, See also United Nations,
Investigative Team (Daesh/ISIL)

mass grave sites, 841 propriety, 244, 257

United Nations, 815 prosecution, influence over, 1065
public expression, 770
public opinion, 249
J self-governance, 743
Jäger, Christian Sharí‘ah, 103, 106, 109, 114, 119, 124
Separation and Abstraction Principle, 707 sobriety, 127
Jakobs, Günther, 701 standards, 1027, 1032
Jallow, Hassan Bubacar, 936 values, 94, 129
Jaspers, Karl, 482 verification (complaints), 779
Jefferson, Thomas, 603 witness, interference with, 1131
Johnson, Michael, 419 justice
Johnson, Samuel, 842 African Tree (notion), 255
judicial conduct appearance, 1036
accountability, 741, 743, 1054 customary. See customary justice
Adab Al-Qāḍī, 100 divine, 48, 50, 104, 110, 126
Akay situation (MICT), 946 fairness, 725
American Bar Association, 1011 France, revolutionary, 241
Bemba case (ICC), 303 Greece, ancient, 48
bias, appearance of, 749 Homer, 52
competence, diligence, 133, 244, 265, 767 legitimacy (domestic j.), 797
confidentiality, 767 multiculturalism, 245
conflict of interest, 257 procedural, 694
Council of Europe, 1048 punishment, 699
court conduct, 914 retributive, 700
disqualification, 1044 rituality, 504
election, 807, 1136 Sharí‘ah, 105, 110, 126
equality, 129, 244 symbolism, 258
ethics, 285 terminology, 105
Extraordinary Chambers in the Courts of truth, 695, 888
Cambodia, 754
fair trial rights. See sub-entry, international K
courts and tribunals.
firmness, 127 Kabila, Joseph, 417
impartiality, 131, 243, 258, 266, 439, 455, Kafka, Franz
500, 694, 747, 763 Der Prozess, 714
impartiality (presumption), 748 Kagame, Paul, 406
independence, 12, 132, 759, 925, 942, 1034, Kaleck, Wolfgang, vi
1041, 1044 Kant, Immanuel, 688
Independent Expert Review (ICC), 37 cosmopolitanism, 718
integrity, 95, 103, 119, 126, 232, 238, 240, rule of law, 718
258, 268, 472, 747, 764 Toward Perpetual Peace, 718
integrity (emotional), 134 Universal Principle of Right, 643
International Criminal Court, 286, 752 Karibi-Whyte, Adolphus, 1055
International Criminal Tribunal for the Kennedy, Robert F., 828
former Yugoslavia, 750 Khan, Karim A.A., 866
investigation (complaint), 779 Khan, Shaharyar, 1075
Kosovo Specialist Chambers, 765, 781 Kosovo Specialist Chambers
More, Thomas, 197 Code of Judicial Ethics, 1058
Nahimana case (MICT), 1016 integrity (requirement), 765
presidential, 944 judicial conduct, 781
private life, 776, 802, 886 judicial ethics (code), 756

Index
L United Nations, 517, 520, 534, 825

Lemoine, Jacques, 948
Larsson, Stieg, 615 The International Civil Servant, 14
Law (Kosovo Specialist Chambers) Lessig, Lawrence, 361
Article 26, 756 Levine-Schnur, Ronit, 672
Article 27, 756 Liberia
Article 31, 756 National Patriotic Front, 624
LAWASIA LIU Daqun, 958
Beijing Statement, 1048 LIU Jinkun, 649
leadership Lopes-Terres, Patrick, 413
integrity, 812 Loures, Luiz, 540
International Criminal Court, 420 Luban, David, 10, 14, 273
international criminal justice, 405 Lucian
International Criminal Tribunal for Rwanda, How to write History, 70
417 The Tyrannicide, 185
International Criminal Tribunal for the Luhmann, Niklas
former Yugoslavia, iii, 1067 system theory, 677
Investigative Team (UN, Daesh/ISIL), 831 Luther, Martin, 195, 199
management, 407
prosecutorial, 416, 1138
United Nations, 532
M
League of Nations, 213 MacCormick, Neil, 658
legal framework (integrity) integrity and law, 661
codes of conduct, 805, 877 Machiavelli, Niccolò, 613
Commission for International Justice and MacKinnon, Catharine
Accountability, 636 Sexual harassment of Working Women, 555
counsel, 940 Magna Carta of Judges, 1052
ethics charter, 875 Mahomed, Ismail, 893
Extraordinary Chambers in the Courts of Malcai, Ofer, 672
Cambodia, 754 Mammadov, Muslum, 160
impartiality (judicial), 953 Mandela, Nelson, 1066
International Court of Justice, 219 Marchi-Uhel, Catherine, 626
International Criminal Court, iv, 220, 259, Markovic, Milan, 1099
283, 287, 294, 436, 720, 724, 752, 875, May, Richard, 456
877, 880, 1083, 1109 McFall, Lynne, 645
International Criminal Tribunal for the Melzer, Nils, 481
former Yugoslavia, 437, 754 Meron, Theodor, 935, 983, 1061
international law, ix Akay situation (MICT), 922, 944, 945
International Residual Mechanism for cable ‘gate’ (WikiLeaks), 163, 941
Criminal Tribunals, 757, 939, 947, 1013, early release decisions (MICT), 984
1017 integrity, 946
interpretation, 17 International Criminal Tribunal for Rwanda,
Islamic law. See Sharí‘ah 163
judiciary, 752, 764, 1017, 1041, See also International Criminal Tribunal for the
judicial conduct former Yugoslavia, 163, 750, 941, 973
Kosovo Specialist Chambers, 756 judicial conduct, 946
legally binding, 98 Nahimana case, 941, 989, 992, 1011
procedural rules, 804 Ngirabatware case, 943, 946
prosecutorial, 936, 939, See also presidency (MICT), 923, 943, 946, 994
prosecutorial conduct MeToo (#) movement, 536, 547
Special Tribunal for Lebanon, 755 MH17 investigation
systematic approach, 270 Joint Investigation Team, 624

MICT Møse, Erik, 2, 1132

code of conduct (counsel), 777 Muller, Alexander, vi
code of conduct (judges), 942, 1013, 1057 Muna, Bernard, 412, 418
co-operation (States), 924 Muthoga, Lee G., 926
early release decisions, 984, 1000, 1019
judicial ethics (code), 777
Nahimana case, 984, 1019 N
Ngirabatware case, 924, 938, 945 Nahimana, Ferdinand
President, 994 Application for Release, 1001
Prisoner Release Analysis Unit (proposal), appointment (ORINFOR), 986
1018 conviction, 989, 992
two thirds ‘rule’ (early release), 1009 early release, 983, 998, 1004
Mieth, Friederike, 235 Nakhjavani, Salim, 40, 333
Milgram Experiment, 274 natural law, 494
Mochochoko, Phakiso, 7, 1105 Ngeze, Hassan, 1006
Mohammed, Suhail, 40 Nice, Geoffrey
More, Thomas, xiii, 433 Justice for All and How to Achieve It, 464
Apology, 201 NIL Nonn, 1056
Aristotles, 181 non-governmental organizations
Church of England. See Church of England integrity, 12
civil service, 168 International Criminal Court, 402, 710, 1079
conscience, 152 international criminal justice, 619
Declamation, 185 International Criminal Tribunal for Rwanda,
Erasmus of Rotterdam, 152 1075
impunity, 188 International Criminal Tribunal for the
integrity, 152, 193, 197, 205, 208 former Yugoslavia, 620, 1075
language, 167 investigations. See investigations, private
lawyer, 198 Syria, 631
Oath of Succession, 206 Northern Humanism, 152
Plato, 181 Norwegian Helsinki Committee, 153, 606
Protestantism, 198, 201 Fatou Bensouda (correspondence), 166
Roman values, 182 Nuremberg trials
rule of law, 466 Courtroom 600, v
spiritedness, 187, 190 Einsatzgruppen trial, 1094
strategy, 167 fair trial rights (IMT), 700
trial, 206, 207 legacy, 261
tyranny, 183, 187, 190
Utopia, 168, 186, 199
Moreno-Ocampo, Luis, 97, 356, 403, 416, 421 O
diplomacy (ICC-OTP), 422
draft Code of Conduct, 332, 1097 O’Brien, Robert, 6
European Investigative Collaborations leaks, O’Reilly, Emily, 596
151, 164, 229, 422 O’Sullivan, Simon, 490
focused investigations (strategy), 1087 Odio Benito, Elizabeth, 1076
Gbagbo arrest, 1135 O-Gon Kwon, 7
Jolie, Angelina, 6 Ombudsmen
Libya referral (UNSC), 422 Australia, 1127
recruitment (ICC), 421 Code of Conduct (EU), 596
Tatanaki, Hassan, 1109 European Union, 594, 1114
The Guardian article (Darfur), 884, 1099 Organisation for Economic Co-operation
United States, 6 and Development, 594
Moro, Sérgio Fernando, 482 Statute (EU Ombudsman), 595

Index
Sweden, 593 Pompeo, Michael, 6, 478, 1077

Orentlicher, Diane, 978 Posner, Eric
Organisation for Economic Co-operation and Law and the Emotion, 504
Development, 538 posture, 57
Oslo Recommendations, 792, 806 appearance, 257
OZAKI Kuniko, 1085 bowing down, 60
Cicero, 73
morals, and, 63, 73
P professionalism
Packer, Herbert ethical framework, 877
Crime Control Model, 680 exemplary behaviour, 179
Due Process Model, 681 integrity. See integrity (aspects), professional
Papa, Marjana, 235 reputation, 1129
Paris Declaration on Resilient Justice, 793 prosecutorial conduct, 259
Paris Declaration on the Effectiveness of Bemba case (ICC), 301
International Criminal Justice, 1030, 1059 case selection and prioritisation, 1077
Parker, Christine, 549 Court of Bosnia and Herzegovina, 1133
Parliamentarians for Global Action deontology, 281, 333, 635
composition, 1079 disclosure, 710, 883, 912, 1130
international criminal justice, 1080 ethics, 280
recommendations (ICC), 1092 gender-related issues, 1076
Paschke, Karl Theodor, 1096 Guidelines on the Roles of Prosecutors, 936
pater familias, 71, 241 independence, 1069, 1072
Perrin de Brichambaut, Marc, 2, 1093 institutional integrity, 303
Perry, Roy, 595 integrity, 434, 1099, 1129, 1130
Physicians for Human Rights International Criminal Court, 636
International Criminal Tribunal for the International Criminal Tribunal for the
former Yugoslavia, 620 former Yugoslavia, 2, 437
Pillay, Navanethem, 1077 International Residual Mechanism for
pitfalls (integrity) Criminal Tribunals, 938
daily subsistence allowance, 412, 414 leadership. See leadership
emotional, 223 private life, 885
external pressure, 177, 180, 218 Special Court for Sierra Leone, 617
funding, 1106 staff, 354
International Criminal Court, 341, 342, 375, Standards of Professional Conduct (MICT),
382, 390, 847, See also International 936
Criminal Court, ReVision, recruitment, strategy, 281, 444, 697, 820
and others.
International Criminal Tribunal for Rwanda, Q
411
International Criminal Tribunal for the quality control
former Yugoslavia, 413 integrity, 153, 174
judiciary, 1085 International Criminal Court, 339
personal relationships, 178 Quality Control project
post-employment, 1109 Criminal Investigation, 862
pressure, social and cultural, 1107 Quintus Horatius Flaccus
United Nations, 1134 Integer Vitae, 85
Plato Quis custodiet custodes?, 221
Apology, 66
Socrates, 172
Timaeus, 59
Pocar, Fausto, 989

R Radio Télévision Libre des Milles Collines

(‘Radio Machete’), 984
Rackwitz, Klaus, iv, v, x
Rankin, Melinda, 640
Rapp, Stephen, 631
S
realpolitik, 484 Sallust
Residual Special Court for Sierra Leone Conspiracy of Catiline, 77
commutation and early release, 1014 virtue, 80
Responsibility to Protect (doctrine) Saudi Arabia
Libya, 975 Khashoggi, Jamal, 606
revolving doors, phenomenon, 598 self-evaluation, 217
Ombudsman (EU), 598 self-oblivion, v, 949, See also Hammarskjöld,
Rhode, Deborah L., 10 Dag
Rhodes, Kingston, 541 self-restraint, 217
Rindskopf Parker, Elizabeth, 1068 Sellers, Patricia V., 1076
Roberts, Paul, 645, 685, 705, 725 Shahabuddeen, Mohamed, 989
Robinson, Peter, 923 Sharí‘ah
correspondence (UN), 934 Adab Al-Qāḍī, 101
Motion for Order to Government of Turkey Al-qāḍī, 113
(MICT), 938 Arabic language, 98, 102
Ngirabatware case, 940, 941 competence, diligence, 133
Rockefeller, John D., Jr., 1028 corruption, 141
Rogall, Klaus, 689, 700 disciplinary action, 142
Rules of Procedure and Evidence (ICC) equality, 129
Rule 24, 774, 784 ethics, judicial, 99
Rule 25, 775 ijmā, 98
Rule 26, 783, 784, 785, 790 ijtihád, 98, 111, 114
Rule 29(1), 784 impartiality, 131
Rule 30, 784 independence, 132
Rule 32, 784 integrity, 96, 139, 145
Rule 49, 888 integrity (emotional), 134, 137
Rule 5(1), 753 jurisprudence (fiqh), 98
Rule 77, 729 objectives, 111
Rule 9, 284 Qur’án, 96, 100
Rules of Procedure and Evidence (ICTY) requirements (judiciary), 121, 123
Rule 15, 455, 953, 1054 resoning (independent-individual). See infra
Rule 24, 755 ijtihád
Rule 46, 446, 462 sources, 95, 104, 146
Rule 65 ter, 439, 440 Sunnah, 96, 100, 105, 113
Rule 66, 439 Sherwin, Richard
Rule 67, 439, 443, 451 digital baroque, 496
Rule 68, 446, 450 Sibidé, Michel, 541
Rule 95, 708 Socrates. See Plato
Rules of Procedure and Evidence (MICT) Söderman, Jacob, 595
Rule 150, 996, 1003 SONG, Tianying, v
Rule 151, 996, 1002 Special Court for Sierra Leone
Rule 18, 1010 convictions, 397
Rwanda integrity, 617
colonisation, 986 Taylor case, 965
ethnicities, 986 Special Tribunal for Lebanon
Interahamwe, 987 establishment, 1134
judicial ethics (code), 755, 1058

Index
Stanford Prison Experiment, 274 Article interpretation, 675

Statute (ICC), 1125 Article Preamble, 499
Article 10, 666 Statute (ICJ)
Article 112(4), 1112 Article 17, 220
Article 12(3), 315 Article 20, 220
Article 127, 1121, 1122 Statute (ICTR)
Article 13, 317, 1120 Article 12, 804
Article 16, 317 Statute (ICTY)
Article 2, 317 Article 13, 455, 952
Article 21, 666, 1083 Article 14, 409
Article 21(3), 690, 720 Article 16, 409
Article 27, 311 Article 18(3), 666
Article 36, 1083, 1092 Article 21, 455
Article 36(3), 97, 220, 259, 286, 409, 489, Statute (MICT)
744 Article 18, 943
Article 38(3), 376, 848 Article 26, 995
Article 40, 1100 Article 9, 925, 947
Article 40(2), 1085 Statute (STL)
Article 41(2), 745 Stewart, James, 1
Article 42, 1083, 1102 Suleymanov, Elkhan, 160
Article 42(2), 848 Sustainable Development Goals, xiv
Article 42(3), 97, 220, 259, 283, 409, 489 Goal 16, 227
Article 43(2), 376, 848 Syracuse Principles (judicial independence),
Article 44, 294, 1092 1044
Article 44(2), 409 Syria
Article 45, 283, 287, 753, 1095 torture, 630
Article 46, 753 universal jurisdiction cases, 629
Article 46(1), 774 veto (UN Security Council), 624
Article 46(2), 784
Article 47, 753, 784
Article 54(1), 294, 295, 714 T
Article 54(3), 710, 727, 730, 1098 Tacitus
Article 55, 726 Histories, 72
Article 58(1), 885 Tatanaki, Hassan, 1109
Article 6, 502, 720 Taylor, Charles, 624
Article 60, 297 Taylor, Gabriele, 272
Article 61, 297 Teitel, Ruti, 261
Article 64, 297 Teubner, Gunther, 677
Article 67, 726 Thaman, Stephen, 668, 724
Article 68, 297 The International Secretariat of the Future, 10
Article 69, 297 Thompson, Dennis, 361
Article 69(7), 667, 704, 709, 724 Treaty of Maastricht, 594
Article 69(8), 666 Truman, Harry S., 700
Article 76, 297 Turkey
Article 78, 297 Fetullahist Terrorist Organization, 919, 925
Article 8(2), 1097 Turvey, Brent, 705
Article 83, 297 Tutu, Desmond, 254
Article 84, 297

U System Model Policy on Sexual Harassment,

542
Umar Ibn Abd Al-Aziz UNITAD, 818, 822, 833, 842
requirements (judiciary), 116 Voluntary Public Disclosure Initiative, 533
Umar Ibn Al-Khaṭṭáb, 99, 129 Working Group on Arbitrary Detention
Abú Moussa Al-Ashari, message to, 123 (HRC), 1134
Message to the Judiciary, 136, 148, 261 United States
unequal treatment (staff), 393 campaign donations, 361
United Kingdom Code of Conduct for Judges, 1012
Bar Standards Board (England and Wales), Constitution, Fourteenth Amendment, 697
435 Department’s Professional Responsibility
Crown Prosecution Service (England and Advisory Office (DOJ), 913
Wales), 697 Equal Employment Opportunity
Gilham v. Ministry of Justice case (Supreme Commission, 555
Court), 1138 Harris v. Forklift Systems case (Supreme
McQuire v. Western Morning News case, 568 Court), 569
Police and Criminal Evidence Act, 655, 656 Human Rights and Special Prosecutions
United Nations Section (DOJ), 906, 908, 913
Chief Executive Board for Coordination, International Criminal Court, 5, 6
551, 586 Meritor Savings Bank v. Vinson case
ClearCheck, 542 (Supreme Court), 557
Code of Conduct, 515 Mueller investigation, 606
co-operation (States), 823, 830, 839 Parole Board, 1018
declaration of interest (staff), 529 Service-Members’ Protection Act, 8
Economic and Social Council, 242 Terry v. Ohio case (Supreme Court), 649
Ethics Office, 528, 538, 827, 1113, 1114 Universal Declaration of Human Rights, 1038
Financial Disclosure Programme, 529 Urquhart, Brian, 17
Global Judicial Integrity Network (UNODC),
34
interest, conflict of, 534
V
International Independent Investigating Vaz, Andrésia, 989
Commission, 1133 virtue
Investigative Team (Da’esh/ISIL), 813 Aquinas, Thomas, 87, 91
Legal Counsel, 220, 934 Cardinal. See Cardinal Virtues
Myanmar, 638 Cicero, 74
neutrality, 215, 217 ethics, 86, 145
Office of Internal Oversight, 1063 etymology, 87
Office of Legal Affairs, 923, 929, 932, 934, heroism, 85
1131 institutional, 179
Office on Drugs and Crime, 232 integrity (relation), 272, 277
opinion, freedom of, 521 religious, 50
recruitment, 838 Republican (Rome), 79
Resolutions 2379 (UNSC), 813, 819 Sallust, 77, 80
rule of law (definition, Secretary-General), Theological Virtues, 91, 92
1081 Volonte, Luca, 159
Secretary-General, v, 213, 470, 522, 1070 von Hebel, Herman, 402, 405
sexual harassment, discrimination (policies),
329
Staff Rules and Regulations, 321, 410, 515, W
520, 814, 931
Syria, 624, 625, 737 Webley, Simon, 891
Webster, John

Index
The Duchess of Malfi, 812 Wiley, William, vi, 736

Weeramantry, Christopher, 232 Williams, Bernard, 271
Werner, Andrea, 891 Wittgenstein, Ludwig
whistle-blowing ethics and aesthetics, 499
Assange, Julian, 481 World Beyond War, 486
Brazil, 482
European Union, 605, 608
International Criminal Court, 325, 869 Y
judges, 1138 Yasushi, Akashi, 1070
Norway, 608
openness, culture of, 609
Organisation for Economic Co-operation Z
and Development, 608
protection, 480 Zacklin, Ralph, 1061
United Kingdom, 608 Zuckerman, Adrian, 685
United Nations, 608, 1138

TOAEP TEAM
Editors
Antonio Angotti, Editor
Olympia Bekou, Editor
Mats Benestad, Editor
Morten Bergsmo, Editor-in-Chief
Alf Butenschøn Skre, Senior Executive Editor
Eleni Chaitidou, Editor
CHAN Icarus, Editor
CHEAH Wui Ling, Editor
FAN Yuwen, Editor
Manek Minhas, Editor
Gareth Richards, Senior Editor
Nikolaus Scheffel, Editor
SIN Ngok Shek, Editor
SONG Tianying, Editor
Moritz Thörner, Editor
ZHANG Yueyao, Editor
Editorial Assistants
Pauline Brosch
Marquise Lee Houle
Genevieve Zingg
Law of the Future Series Co-Editors

Dr. Alexander (Sam) Muller
Professor Larry Cata Backer
Professor Stavros Zouridis
Nuremberg Academy Series Editor

Dr. Viviane E. Dittrich, Deputy Director, International Nuremberg Principles Academy
Scientific Advisers
Professor Danesh Sarooshi, Principal Scientific Adviser for International Law
Professor Andreas Zimmermann, Principal Scientific Adviser for Public International Law
Professor Kai Ambos, Principal Scientific Adviser for International Criminal Law
Dr.h.c. Asbjørn Eide, Principal Scientific Adviser for International Human Rights Law
Editorial Board
Dr. Xabier Agirre, International Criminal Court
Dr. Claudia Angermaier, Austrian judiciary
Ms. Neela Badami, Narasappa, Doraswamy and Raja

Dr. Markus Benzing, Freshfields Bruckhaus Deringer, Frankfurt

Associate Professor Margaret deGuzman, Temple University
Dr. Cecilie Hellestveit, University of Oslo
Dr. Pablo Kalmanovitz, Centro de Investigación y Docencia Económicas, Mexico City
Dr. Sangkul Kim, Korea University
Professor Jann K. Kleffner, Swedish National Defence College
Professor Kjetil Mujezinović Larsen, University of Oslo
Professor Salím A. Nakhjavání, Institute for Security Studies, Pretoria
Professor Hector Olasolo, Universidad del Rosario
Ms. Maria Paula Saffon, DeJusticia
Dr. Torunn Salomonsen, Norwegian Ministry of Justice
Professor Carsten Stahn, Leiden University
Professor Jo Stigen, University of Oslo
Dr. Philippa Webb, King’s College London
Dr. WEI Xiaohong, Renmin University of China
Advisory Board
Mr. Hirad Abtahi, International Criminal Court
Judge Silvana Arbia, former Registrar of the International Criminal Court
Professor Olympia Bekou, University of Nottingham
Mr. Gilbert Bitti, International Criminal Court
Research Professor J. Peter Burgess, PRIO
Former Judge Advocate General Arne Willy Dahl, Norway
Professor Emeritus Yoram Dinstein, Tel Aviv University
Professor Jon Elster, Columbia University and Collège de France
Mr. James A. Goldston, Open Society Institute Justice Initiative
Mr. Richard J. Goldstone, former Chief Prosecutor, ICTY
Judge Hanne Sophie Greve, Gulating Court of Appeal, formerly ECtHR
Dr. Fabricio Guariglia, International Criminal Court
Professor Franz Günthner, Ludwig-Maximilians-Universität
Mr. Wolfgang Kaleck, European Center for Constitutional and Human Rights
Former Judge Erkki Kourula, International Criminal Court
Professor Claus Kreß, Cologne University
Professor David Luban, Georgetown University
Mr. Juan E. Méndez, former President, ICTJ
Dr. Alexander Muller, Director, The Hague Institute for the Internationalisation of Law
Judge Erik Møse, European Court of Human Rights, former President, ICTR
Dr. Gro Nystuen, Norwegian Judge
Mr. William Pace, Convener, Coalition for the International Criminal Court
Ms. Jelena Pejić, International Committee of the Red Cross
Mr. Robert Petit, former International Co-Prosecutor, ECCC
Dr. Joseph Rikhof, Ottawa University, Canada
Maj-Gen (ret’d) Anthony P.V. Rogers, Cambridge University
Professor William A. Schabas, Middlesex University
Professor James Silk, Yale Law School
Associate Professor YANG Lijun, Chinese Academy of Social Science
Professor Marcos Zilli, University of Sao Paulo

OTHER VOLUMES IN
THE NUREMBERG ACADEMY SERIES
Linda Carter and Jennifer Schense (editors):
Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals
Brussels, 2017
Nuremberg Academy Series No. 1 (2017)
ISBN: 978-82-8348-186-0
Tallyn Gray (editor):

Islam and International Criminal Law and Justice
Brussels, 2018
ISBNs: 978-82-8348-188-4 (print) and 978-82-8348-189-1 (e-book)
Viviane E. Dittrich, Kerstin von Lingen, Philipp Osten and Jolana Makraiová (editors):
The Tokyo Tribunal: Perspectives on Law, History and Memory
Brussels, 2020
ISBNs: 978-82-8348-137-2 (print) and 978-82-8348-138-9 (e-book)
All volumes are freely available online at http://www.toaep.org/nas/. For printed copies, see
http://www.toaep.org/about/distribution/. For reviews of earlier books in this Series in academic
journals and yearbooks, see http://www.toaep.org/reviews/.
The International Nuremberg Principles Academy (Nuremberg Academy) is a non-profit
foundation dedicated to the advancement of international criminal law and human rights. It was
established by the Federal Republic of Germany, the Free State of Bavaria, and the City of Nu-
remberg in 2014. The activities and projects of the Academy are supported through contributions
from the three founding entities and financially supported by the Federal Foreign Office of
Germany.

Nuremberg Academy Series No. 4 (2020):
Morten Bergsmo and Viviane E. Dittrich (editors)
This is the first book to comprehensively analyse integrity in international justice.

Thirty-three chapters discuss in-depth the meaning of integrity, awareness and
culture of integrity, the roles of international organizations and states as well as in-
ternational courts in enhancing integrity, integrity as seen through the lens of cases,
and the relationship between the principles of independence and integrity. The book
considers integrity as a legally binding standard in international courts, while includ-
ing perspectives from other disciplines such as philosophy, history, psychology and
religion. It argues that respect for integrity among high officials and staff members is
a prerequisite for international courts and other international organizations to fulfil
their mandates.
The authors include the prominent judges Hans Corell, Richard J. Goldstone,
Hanne Sophie Greve, Ivana Hrdličková, Erik Møse and David Re, and 37 other leading
actors and experts in the field of international justice: Adedeji Adekunle, Jonathan
Agar, Marina Aksenova, Antonio Angotti, Mohamed Badar, Morten Bergsmo, Vieri
Biondi, Julija Bogoeva, Emiliano J. Buis, Andrew T. Cayley CMG QC, Dieneke T. de
Vos, Viviane E. Dittrich, David Donat Cattin, Gunnar Ekeløve-Slydal, Polona Flori-
jančič, Jan Fougner, Shannon Fyfe, Gregory S. Gordon, Alexander Heinze, Marta
Hirsch-Ziembinska, Brigid Inder OBE, Karim A.A. Khan, Cyril Laucci, Adel Maged,
Teresa McHenry, Suhail Mohammed, Salim A. Nakhjavani, Juan Carlos Botero Navia,
Matthias Neuner, Shan Patel, Adrian M. Plevin, Basil Saen, Bettina Julia Spilker, Chris-
topher Staker, Ann Marie Ursini, Melissa Verpile and William H. Wiley.
ISBNs: 978-82-8348-190-7 (print) and 978-82-8348-191-4 (e-book).

Via San Gallo 135r
50129 Florence
Italy
URL: www.toaep.org

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Integrity in International Justice

Morten Bergsmo and Viviane E. Dittrich (editors)

Morten Bergsmo and Viviane E. Dittrich

Integrity as Safeguard Against the Vicissitudes of International

Integrity as Safeguard Against

The topical salience and urgency of recognising and revisiting integrity in

Nuremberg Academy Series No. 4 (2020) – page 1

of integrity in international justice was also highlighted by Judge Marc Per-

Nuremberg Academy Series No. 4 (2020) – page 2

cept of ‘integrity’ is used in multifarious ways in the literature. 3 This may

Nuremberg Academy Series No. 4 (2020) – page 3

The response has exceeded our expectations, with an outburst of in-

Nuremberg Academy Series No. 4 (2020) – page 4

Nuremberg Academy Series No. 4 (2020) – page 5

of States Parties attempted to protect a high-ranking govern-

Nuremberg Academy Series No. 4 (2020) – page 6

prosecutor”, referring to the Court as a “corrupt international organiza-

Nuremberg Academy Series No. 4 (2020) – page 7

Any attempt to undermine the independence of the Court

Nuremberg Academy Series No. 4 (2020) – page 8

Nuremberg Academy Series No. 4 (2020) – page 9

Nuremberg Academy Series No. 4 (2020) – page 10

This book, as well as the wider project, takes a comprehensive ap-

nary Examination: Volume 2, TOAEP, Brussels, 2018, pp. 1-75 (http://www.toaep.org/ps-

Nuremberg Academy Series No. 4 (2020) – page 11

element of lawyers, however it seems crucial to be properly informed of

Nuremberg Academy Series No. 4 (2020) – page 12

course on ‘integrity’, and to see whether we can identify

Figure 1: Visualisation of the conceptual structure of the book.

Nuremberg Academy Series No. 4 (2020) – page 13

“one of the most important and oft-cited of virtue terms”, referring to “a

Nuremberg Academy Series No. 4 (2020) – page 14

sophical approach to integrity, Buis highlights the value of understanding

Nuremberg Academy Series No. 4 (2020) – page 15

terms of principles and strategies to strengthen individual and institutional

Nuremberg Academy Series No. 4 (2020) – page 16

Nuremberg Academy Series No. 4 (2020) – page 17

skjöld saw service as “self-oblivion”, as striving towards “an unhesitant

Nuremberg Academy Series No. 4 (2020) – page 18

indifference to international standards regarding oversight. The chapter ad-

Nuremberg Academy Series No. 4 (2020) – page 19

duty of candour and honesty, in addition to independence, integrity and

Nuremberg Academy Series No. 4 (2020) – page 20

5. Role of International Organizations and States

Nuremberg Academy Series No. 4 (2020) – page 21

lio-responsibility for an international court when they themselves have a

Nuremberg Academy Series No. 4 (2020) – page 22

Nuremberg Academy Series No. 4 (2020) – page 23

illegal conduct of private investigators. The chapter carefully evaluates in-

Nuremberg Academy Series No. 4 (2020) – page 24

officials”? 51 Are the existing statutory requirements of ‘integrity’ or ‘high

Nuremberg Academy Series No. 4 (2020) – page 25

tional Criminal Justice and Regional Human Rights Courts”). Mindful of

Nuremberg Academy Series No. 4 (2020) – page 26

Nuremberg Academy Series No. 4 (2020) – page 27

nals. Certainly, a more systematic analysis of a wide scope of cases is re-

Nuremberg Academy Series No. 4 (2020) – page 28

ions concerning the alleged change in ICTY jurisprudence were wrong,

Nuremberg Academy Series No. 4 (2020) – page 29