Lisa P. Nathan: So when you did come here to the tribunal, did you have a goal or a set of goals in your work here?
Improve everything; make sure that nobody else will be criticizing the jurisprudence. But I’m the first one to continue criticizing it. No, I had a goal to do my best and have some decisions I could be happy about and some development I could be happy about. Even if my advice is not always considered, I still have impression that it has been taken into account, it could change a footnote in the decision, that’s already a step to the next one, up to when we reach something everyone will be happy about but I don’t think (_) it’s in this one.
LPN: Is there a specific example of something you feel proud of?
The decision in Bagaragaza denying the application for referral to Norway. I was in the team.
LPN: Can you say any more about that?
It was a challenging case because as I state, it’s easy to think that an international tribunal could request a third world country to improve its legal system. Saying it for a European country, a well-established old and everything, it’s more difficult. And the judge have been able to say it in few words. They didn’t need ten page. The argument on that issue was about one paragraph of 20 line; clear, straight and its move forward.
So I was very happy about it and the team also, we work. We were about – instead of four or five usually, we were about six or seven. All of us have different views with the judges and we enjoy drafting this decision and I think up to now we are still happy when we look back at it.
LPN: So now I have a harder question. Is there something that you don’t feel so proud of?
Yes. There are few things. I could mention only one; the fact that Rwamakuba never got any compensation for the eight year he spent in jail – that’s difficult for me.
LPN: So if there was, if there’s something that you could change, if you look back, is there something that you wish you had done there or?
I wish I was a judge. Simple.
LPN: So, the other thing that I would like to touch on is clearly you are a scholar of international law so you think a lot about how this, this particular court is structured. You have experience, direct experience of the ICC, the International Criminal Court. Say there’s another ad hoc court created, what would be a suggestion or a few suggestions you would have for that court?
I will advise them to recruit the best lawyer in the previous tribunal because the jurisprudence created in-, by international criminal jurisdiction right now, few people are well-acquainted with that jurisprudence. And it deal with lot of matters – if you take someone who is not well involved in that jurisprudence, you will run into the risk of repeating some of the errors.
I have been to the International Criminal Court but I’m sorry to say it, they are not getting the best even when the recruit me. So it’s something which is now affecting the way in which they work. Just take one case. Look at the Lubanga case. There is a provision in the International Criminal Court statutes, Article 54 providing for the prosecution to sign agreement with various sources to gather information which will stay confidential.
But there was a phraseology in that provision saying this information, this evidence prosecution will be gathering will just be used to gather more evidence. So the idea behind is that you use confidential evidence which you cannot disclose to get similar evidence which you could disclose.
But what the prosecution has been doing is signing agreements keeping everything confidential and coming to court telling the judges, “I have some information, some evidence which are potentially exculpatory,” but they don’t want to disclose them because they signed an a-, an agreement. It’s, it’s completely outrageous.
Look at it, you say, but how can you dare think that you can have exculpatory evidence which you refuse to disclose, and you don’t want to show it to the judge for them to be able to look at it and say, “Oh we agree. This is exculpatory.” You say, “No, Judge. You are not allowed to see it.” Where are we going when the prosecution behaves in such a manner?
So, but they recruit people from the other tribunal. In my view, these are not the best lawyer they could have. That’s the reason why they run into such trouble. And the consequence has been strict. The trial chamber say, “Look, we can no longer guarantee a fair trial to the accused. He has to be released.” The cases before the trial, the Appeals Chamber now, we’ll see what the Appeals Chamber will decide.
So that’s one instance where a new international criminal court created has not been able to take advantage of the lessons from the other. When they will recruit the best lawyer and look into the way those tribunal have been working, I’m sure the-, they will gain something more and advance our world.