Room for Everyone at The Hague
By Eric EllisFebruary 8, 2012
It's taken 14 years and USD1 billion but The International Criminal Court has finally obtained a verdict. Why does it take so long? And is the world getting the legal system it needs in The Hague? Eric Ellis went to the Dutch capital last month to explore..
MEET Kuniko Ozaki - 55, Japanese and, since 2009, international resident of The Hague.
Ozaki-san is one of the current 19 judges of the International Criminal Court, which sits in The Hague with claims as the world's most distinguished forum to transact criminal justice.
With her untaxed, near €300,000-a-year package with generous pension entitlements that you, the taxpayers, help foot, few would argue hers is an important task, perhaps among the most vital at such rarefied heights of international law.
And never more than during these dark days of violence - the oppression of popular revolutions by despots who kill democrats and trigger genocide. We've all seen the footage - victims from around the world breathlessly finding voice in sound bites of broken English to will their persecutors to "The Hague." They may not seem quite sure what that actually means, but they're utterly convinced it's the right place to despatch bad guys.
Likewise for the megalomanic monsters and we civilised others; the words "The Hague" don't so much conjure an agreeable if somewhat dull Dutch city, the seat of government for The Netherlands. Rather this city of 500,000 - about 15 per cent of them well-funded "internationals" - has become shorthand for the rule of law, the end of tyranny, for the most high-minded justice for all.
Dutch money, as a local truism goes, might be earned in Rotterdam, spent in Amsterdam and divided in The Hague, but to the rest of us The Hague is the town where the fair-minded bring tyrants and dictators to book, in the hope that their successors won't similarly kill, rape and pillage their citizenry.
We all seem to feel a little lighter when a much-reviled villain is brought here in chains via the nightly news. Astrid Bronswijk, head of The Hague city council's department of international affairs, says a "definite frisson" ripples across town when that happens. "It's kind of why we are here," she says. It's Bronswijk's job to market her city as The Legal Capital of the World.
Indeed, Judge Ozaki herself is presiding over the crimes-against-humanity case of one Jean-Pierre Bemba, a wealthy Congolese warlord who seems particularly evil. Cannibalism of pygmies is but one of the claims made against the odious M. Bemba, though the matter before Judge Ozaki concerns his role in a murderous freelance rampage through neighbouring Central African Republic in 2002.
So given what's at stake, the taxpayers of the world who fund the collective €110 million a year (and rising) for the ICC alone - the generous salaries, the comfortable travel and lodgings, the perks and per diems, the staff and offices of its learned judges - would reasonably expect that the ICC will only hire the world's finest, most supremely qualified legal brains to transact such grave and momentous undertakings. And we'd expect some results, some bang for our buck.
Since 1998, when the ICC was founded under United Nations auspices in Rome, it has yet to complete a case.
It garners many worthy headlines in announcing them - witness last month's indictments of the two Kenyan presidential candidates, last year's pursuit of the Gaddafis and the 2008 indictment of Sudanese President Omar al-Bashir over Darfur. But it doesn't seem particularly adept at trying them.
Indeed, 14 years and almost USD1 billion later, the ICC boasts more judges in its ranks than it has had defendants in its dock: 27 indictees as against some 34 judges called to preside.
Let's crunch those numbers down further. Of these 27 formally pursued by the ICC - all of them Africans - three have died; two are in custody in Libya, their cases dextrously handpassed onto local authorities; two had their cases swiftly dismissed before substantial evidence was heard, and seven are fugitives. That leaves just 13 people who've actually appeared before the court in its 14-year history, and eight of them did so voluntarily.
But time seems elastic at the ICC. The court created by the goodwill and intent of 120 states is still to hand down its first judgment. Its inaugural prosecutor, the high-profile Argentinian lawyer Luis Moreno Ocampo, will soon depart office without any legal precedent to claim.
One of those in custody in Libya, Saif Gaddafi, seemed to do the proverbial ICC math. After his father was killed in Sirte last October, Saif offered himself before the ICC, as his Libya collapsed around him. At one point, he even reportedly offered to pay his own way, even fly his private jet, according to one version. Far better, he figured, to chance one's legal hand in The Hague, which doesn't have the death penalty, than to be throttled in a fetid Zintan dungeon. A few weeks later, Ocampo flew to a Tripoli still in flames and told Gaddafi's successors that he was happy for Libya to mount Saif's trial, despite that he had no reliable guarantee that it would be fair. Libya didn't then have a formal government, and still doesn't.
Though it lacks a police force, the ICC says it can compel member states to arrest indictees. That doesn't much concern Sudan's Beijing-backed President Omar al-Bashir, whose contempt for the court is palpable. He says the ICC charges against him aren't worth the ink they're printed with, as he travels unencumbered to ICC signatory states including Egypt, Kenya, Djibouti and Nigeria.
And as for the ICC's Judge Ozaki, well, she lacks a law degree, which would be reasonably assumed a necessary pre-requisite for a legal process with claims to be a criminal court of courts. Fumiko Saiga, Ozaki-san's compatriot judge at the ICC, whom she replaced in 2009, didn't have one either. Indeed, it's not entirely clear how many of the ICC's judges have formal legal qualifications. Doubtless, there are some eminent jurists on the panel, but the court's information section wasn't exactly fizzing with efficiency in identifying which of the 34 were actually formally qualified to be there, and who were not.
And, more to the point, why not? The ICC's own founding "constitution," the 1998 Rome Statute that ushered the ICC into being, decrees that its "judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective states for appointment to the highest judicial offices."
Now, it may well be that the "highest judicial offices" of Tokyo, Osaka and beyond don't require formally qualified jurists, such be the quirks of Japanese justice. As Judge Ozaki herself explained when quizzed by a non-governmental organisation in 2009 about what she thought qualified her to rule at the ICC, "Japan's Supreme Court, the highest judicial office in Japan, traditionally has recruited at least one justice of the court from among administrators of the government, who are not necessarily lawyers qualified at the bar. Since the end of World War II, seven diplomats have become Justices of the Supreme Court in this way based on cabinet decisions, and have occupied the seat of justice for government administrators for a total of more than 40 years."
Which, again, is all very well, except Judge Ozaki hasn't been a justice of the Japanese Supreme Court either. She's been a career civil servant, mostly at the Japanese foreign ministry and most notably as an "ambassador" - albeit not to a nation but to a little-known UN treaty, the Convention on Biological Diversity. Her ICC predecessor, Judge Fumiko Saiga, also was a diplomat.
Judges Ozaki and Saiga were appointed to the court under the ICC's so-called List B provisions, allowing those with expertise in international law. Judge Ozaki has lectured on international law in Japan, and she's even described on the ICC's website as "an academic lawyer." Except Ozaki's was an arts degree, which she later upgraded to international relations, as might befit a diplomat. None of her qualifications are for jurisprudence.
But there could be another factor as to why ICC rules allow non-lawyer Japanese diplomats such as Ozaki and Saiga tickets on this multilateral gravy train: Japan will provide about 20 per cent of the ICC budget this year. Perhaps if a Democratic Republic of the Congo, or a Qatar, or an Israel provided a fifth of the court's budget, they too could have their non-lawyers appointed to transact justice on our behalf.
This is clearly sensitive stuff for the Japanese, and the ICC too. Though claiming it upholds the highest standards of transparency, the court retreated into bureaucracy to field a series of questions posed by The Global Mail about the Ozaki-Saiga appointments.
When the Financial Times last year raised similar questions about their credentials, Mr Masahiro Mikami, the Japanese Foreign Ministry's director of legal affairs, wrote to the paper defending the two judges' work and international standing, while noting that Judge Saiga had recently died "during her arduous assignment at the International Criminal Court."
Mikami condemned the paper's "unfair targeting" of the two judges, and cited Judge Ozaki as "an excellent example of a List B judge."
"I cannot accept the implied accusation that Japan is taking advantage of its position as the largest contributor to the ICC budget to get a seat on the ICC bench," Mikami wrote. "What would be its purpose? Japan remains the largest contributor, in the absence of three permanent members of the UN Security Council - the US, Russia and China - and is a strong proponent of the enhancement of the ICC's judicial quality and governance. Indeed, only better judges can create a better court. I am proud that Japan has made a good contribution in this respect and will continue to do so in the future."
The ICC's Rome Statute entered into force for Japan on October 1, 2007. Since then it has been a significant contributor to the court, providing €104 million to the ICC budget. Since 2008, it has been footing about 20 to 25 per cent annually.
Mikami told The Global Mail, "Japan has been consistently the top donor to the ICC since joining the Statute in 2007," shouldering the American share, which Washington doesn't pay because it hasn't signed onto the ICC process.
"Japan had borne 22 per cent of the ICC budget, which was the maximum ceiling, until 2009, and has borne approximately 18.6 per cent of the ICC budget since 2010," Mikami says, adding that both judges Saiga and Ozaki "became ICC judges based upon their experience and expertise in the field of international law," qualifying under the List B provisions.
"Because of the differences in legal systems and traditions in various countries, the Rome Statute, as a universal treaty, never refers to those formal domestic qualifications. The Statue qualifies judges by their 'competences,' 'experiences,' or 'expertise,' and refers to 'qualification required in their respective States for appointment to the highest judicial offices.' Indeed, you can find judges with no or very limited experiences in national criminal proceedings even among List A Judges.
"I do not believe there is anything wrong about [judges] being former diplomats," Mikami continues. "Neither has the international community at large had any problem so far, since you find several former professional diplomats among List B (and even among List A) judges from other regions.
"Judge Ozaki, since her appointment, has been a very active trial chamber judge and her legal opinions expressed in various court decisions are highly regarded by legal experts inside and outside the Court. I am personally very happy that Japan has produced those well-qualified judges."
WHAT THE world understands as "The Hague" primarily revolves around the main UN-derived international bodies, the ICC, the International Court of Justice and the Organisation for the Prohibition of Chemical Weapons, the OPCW. After these come the UN's "special tribunals," each with their own extensive personnel and infrastructure operating apart from the ICJ and ICC and convening under their own UN Security Council mandate.
Unlike the ICC, there have been judgments in these other UN tribunals, and solid ones. Indeed, the court trying crimes from the 1990s Balkan War, the International Criminal Tribunal for the former Yugoslavia, is widely seen as a major UN legal success. Dr Joseph Powderly of the Leiden University's Grotius Centre for International Legal Studies says that though he has "serious credibility concerns" about the world leaders with prima facie war crimes cases to answer but will never be indicted because of "realpolitik," for those that do make it to The Hague "justice has pretty much played out as it should."
Some 161 people have been brought before the Yugoslav tribunal, most prominently the former Yugoslav President Slobodan Milosevic (who died in custody in 2006) and Bosnian Serb leaders Radovan Karadicz and Ratko Mladic, whose trials are ongoing. Now winding down, the Yugoslav tribunal is 19 years old. The tribunal for Sierra Leone is now a decade long, the Rwanda hearing 18 years and the Lebanon court, six years and counting.
With its near-1,000 staff from 76 nations housed in its own building, the Yugoslav court has cost almost USD$2 billion to stage. It's been "an investment in the peace and future of southeastern Europe," claims the court.
But is it?
Some 17 years after the Dayton peace accords that ended the Balkan conflict, Yugoslavia is no more and each of its six former republics - seven when counting semi-recognised Kosovo - has become a democracy, with varying degrees of stability. Yugoslavia's smallest former republic, Slovenia, has arguably been its most successful offspring, attaining EU membership in 2004 and meeting the economic rigours of the Eurozone in 2007. Its GDP per capita of USD$25,000 is about 75 per cent of the EU average, and about double the most prosperous of its former compatriot republics, Croatia, which voted two weeks ago to join the EU in 2013.
So far, so good. But the last Yugoslav tribunal prosecutor, the amiable Belgian lawyer Serge Brammertz, isn't convinced attitudes have much changed in the Balkans in the 20 years of the tribunal.
Speaking before Christmas, 2011 at a lecture in The Hague attended by The Global Mail, Brammertz said he was disappointed to see people convicted and jailed in The Hague for monstrous crimes still hailed as national heroes back home. "The message has not got through," he lamented. One of the last Balkan war criminals to be sentenced, the Croatian general Ante Gotovina, was last year regarded by readers of a popular Zagreb newspaper to be the second most influential Croatian of its independence era.
Brammertz says resources could be focussed on public education beyond The Hague, and across the former Yugoslavia "where it matters most." He notes that fugitives have arrived in The Hague after years on the run only to see their health dramatically improve after capture. Here they receive, for free, some of the world's best standards of health care, a balanced diet, cosy and comfortable if limiting accommodations at the so-called Hague Hilton, as the UN's detention facility at seaside Scheveningen is known, and a chance to hone their tennis. The Croat general Gotovina, now serving a 24-year sentence, reputedly became the "monster's champion" as his trial proceeded, known on the Scheveningen courts as "Goran," pace the famous Croatian player Ivanišević.
One diplomat says he's knows of a detainee "accused of the most appalling crimes" who says The Hague saved his life; UN doctors have been able to wean him off a 40-year, 60-a-day chain-smoking habit since he was brought here. It's all a mixed blessing for the brutalised families of their victims back in the Srebrenicas, Vukovars and Sarajevos; yes, many of their now-aged tormentors are behind bars but those families back home are still poor, still broken, still devastated. And their relatives are still dead. It's a sore point for the UN tribunals, now focussing on putting more resources into victim support and reparations. One diplomat says, "The bad blood in some parts of the Balkans reminds me of 1991."
PHILIPPE SANDS, QC, is a professor of law at University College London and has written extensively of the international legal processes that coalesce around The Hague. He's a critic but ultimately a proponent.
"International justice is a long game," he says.
"It took more than half a century for governments to agree on the need for an international criminal court, so it's far too early to provide any sort of serious judgment.
The cost to mount the international courts, he says "is peanuts when you compare how much is spent each year by governments on weaponry. And anyway, justice isn't a can of beans, it's not something you buy at the supermarket."
As for the quality of the judges, "all international courts - criminal, general, economic - will want to be seen to be applying the highest standards across the board. On the judges. On the registries and secretariats. On ethical standards, including independence and impartiality. On the treatment of evidence. On the equality of parties. On the quality of the decisions.
"If they don't meet high standards they will find it difficult to persuade public opinion and national courts - where, after all, most of the work will be done - that their decisions are worth giving effect to.
"Show me any court," Sands says, "national or international, in which politics in the largest sense of the word doesn't intrude in some way. Law and politics are intimately connected, and that's why you need international courts that apply the very highest standards and function according to principles that are transparent.
"It's early days for international justice, including criminal justice. The dangers are there for all to see, including lop-sided arrangements where, as Balzac put it, the law is like a spider's web: the small flies get caught and the bigger ones get away. If the ICC is to have a broad legitimacy around the world, it will need to treat the big and powerful players like the smaller ones. That applies to all the international courts."
HAGUE enthusiasts like to describe the city as a "legal Silicon Valley." Leiden University's Dr Powderly says it's the place to be for anyone exercised by international law. And it's true, this compact town is awash with voluble academics, prolix lawyers and humourless do-gooders from whom it sometimes seems impossible to derive single-word answers when 100 will do. Everyone presents as important and worthy. The Hague and neighbouring Leiden are known in The Netherlands for the quality of their bookshops.
Their readers staff the many other bodies, foundations, embassies, treaty offices and "post-conflict managers;" Europol, Eurojust, the European Library, the Carnegie Foundation and so on, et al, seemingly ad infinitum. From the Orange People to the Red Cross, from peace choirs to NATO's C3 Agency, The Hague council devotes 19 pages of its city guide indexing them. What, precisely, is Euroclio? The Spanda Foundation? Pax Ludens?
These near-countless NGOs, many of them funded by the European Union - for how long, many wonder - feed and gather around the main institutions like plankton on whales. Some are little more than one- or two-man outfits staffed by ex-UN officials and amounting to little more than glorified webmasters. Astrid Bronswijk of The Hague council says NGOs don't need to be registered to set up shop here. "Anyone can be here, so long as they are not on a proscribed EU or Dutch list of banned organisations," she says. "We welcome them." The council estimates that every new international arrival generates one new Dutch job. Some banks and public offices in The Hague have even set up special service lines for internationals, prompting much tutting from queue-marooned locals.
Take the city council's downtown Metropole building at 70 Laan van Meerdervoort, around the corner from the neo-renaissance Peace Palace, seat of the International Court of Justice, the so-called World Court where states seek non-binding judgments on matters such as maritime boundaries.
Rents are levied lightly at The Metropole, which seems to be Intern Central, a functional six-floor edifice that wouldn't be out of place in Mountain View or Palo Alto. Tidy 20-somethings with backpacks and bikes bustle in and out, presumably en route to meet fellow 20-somethings. Over several days, I notice they like to gather over the excellent coffee and nibbles at The Blossom, a famous Hague hangout.
Were this California, this crowd might be programming the next Google, or devising a successor to Facebook. Here at the Metropole, soon to be re-named after the Austrian pacifist Bertha Von Suttner, the first woman to win the Nobel Peace Prize, the United Network for Young Peacebuilders shares the fourth floor with the International Network of Museums for Peace, the International Mediation Institute and the Institute for Historical Justice and Reconciliation. One floor below is the Unrepresented Nations and Peoples Organisation and the International Society of City and Regional Planners. Along the corridor below, the Parliamentarians for Global Action and the Gender Concerns International groups share space with the European Association for History Educators and the International Confederation of Midwives.
Across the road is a Syrian consulate - "it's been very difficult for us here recently," says a hijab-clad visa officer - which is next-door to the Control Office for Halal Slaughtering and the Indian tourist office, which is next-door to the Algerian embassy. The Australian embassy is 50 metres west, past New Zealand and Macedonia, while the Estonians, Cubans and Saudis are but a legal brief's hefty hurl east.
The mind's eye might regard the Laan van Meerdervoort neighbourhood as all very important, even self-important, but it's actually rather mundane. This is no high security no-go zone buzzing with spooks and cops; it's an average Dutch city street. A comely young couple emerge from Slaapvoorlichters, a popular Dutch bedding chain, grappling with a new mattress as a gaggle of matrons check themselves into the day spa opposite. Canadian Deborah Valentine, who runs the city-funded Access NL office aimed at blending "internationals" into The Hague, says that after 18 years here, she's not convinced locals even much notice the internationals moving around them. "It's all a bit cerebral," she says.
But for how long?
The Hague is welcoming but as the Dutch economy sputters in the Euro crisis there's a rising xenophobia in the Netherlands, stirred by the populist Geert Wilders, against untaxed foreigners riding the gravy train. Wilder's PVV party has six seats on the city council, the second biggest lobby. Council officers fret the stonewalling PVV playing the "Little Nederlander" card could start making life harder for them, withholding resources from foreign initiatives. Then again, international funds and civil wars help keep pragmatic Nederlanders here well-shod. Astrid Bronswijk of the town council smirks when it's suggested that today's faraway wars mean big bucks tomorrow in The Hague.
For all its evident comforts - the designer boutiques that have sprung up here in the past decade, the excellent restaurants, groovy cafes and some sumptuous hotels, much favoured by people who don't foot their own bills - what's also striking is who is not here.
This company town whose business is bureaucracy aspires to be a city of solutions, global ones. The well-mannered Hague has not become a locus of international protest, nor a sanctuary for political refugees, throne-pretenders, presidents-in-exile, WikiLeaks-loving iconoclasts or self-styled international finger-pointers.
There's a distinct absence of graffiti, Tibetans and bumper stickers in The Hague. The closest presence that Amnesty International has is in London and Brussels. An October Occupy rally seemed over almost as it started; just as well, as temperatures plummeted.
There's been little of the demonstration activity of anti-globalisation movements that have gathered around the IMF, World Bank or Davos meetings in recent years. Perhaps protesters believe that the decisions that matter aren't made here, they're made between Washington, Beijing, Paris and Moscow, and that The Hague is where the theatre is performed.
The council's Astrid Bronswijk says the only protest she can much recall was when the Turkish embassy complained to her about the presence of a Kurdish ginger group. She told the Turks that The Netherlands was a democracy and as long as everyone obeyed the law, everyone could be here.
Another thing The Hague lacks are the notorious "coffee shops," the dope-peddlers that mark the canal-side streets of louche Amsterdam, an hour's train ride away. Seems everyone in this serious-minded city, not much of a pull for tourists in any event, has their nose in statutes instead of scoobs.
AS I CYCLE amid the myriad manifestations of The Hague's complex legal construct, I discover the city also hosts a museum dedicated to the celebrated Dutch graphic artist Maurits Cornelis Escher.
A favourite of jigsaw-makers, M.C. Escher's trademark style was to portray form as illusion, "impossible realities" that depicted everyday things as tricks of infinite and inconclusive perspective.
In a museum gallery, I reflect on one of Escher's more recognisable works, The Tower of Babel. It's a woodcut he made in 1928, depicting workers of many creeds and races building an ambitious tower ever higher, a polyglot cradle of civilisation surging closer to God, as the biblical fable has it. But at Escher's tower, work has stopped, the workers in varying states of despair because, as he once interpreted it, they can no longer understand each other sufficiently to complete construction.
About a kilometre away from here, work is supposed to soon begin on a new €200 million permanent headquarters of the International Criminal Court, a medley of towers to be finished by 2015, and populated by even more people from ever more nations.
Escher would understand.