SCL Lecture by Mr. James Stewart

Published 15 September 2015

The new Supranational Criminal Law (SCL) lecture series commenced on the 9th of September with a presentation by the Deputy Prosecutor of the International Criminal Court (ICC), Mr. James Stewart. In a lecture entitled “International criminal law – a personal note on its practice and current challenges”, he spoke about his personal experiences at various international criminal tribunals (the International Criminal Tribunal for Rwanda, the International Criminal Tribunal for the former Yugoslavia and the ICC) before addressing what he considered to be the key challenges for the ICC.

He started out by providing a number of anecdotes exemplifying the unique challenges the (employees of the) international tribunals face. Especially striking is the reconciliation of the inquisitorial and the adversarial system within these new international tribunals, necessitated by the inclusion of people from both civil and common law backgrounds. A balance had to be found, and a flexible attitude by all parties to the proceedings was essential. The international criminal tribunals have, throughout their years of practice, developed unique hybrid systems with their own rules and procedures. Hence, many of the ICC’s employees have previous experience in other tribunals, getting used to the distinct international criminal law environment, before settling at the ICC. Mr. Stewart then briefly touched upon the structure and role of the ICC, before addressing the key challenges the ICC (and especially the Office of the Prosecutor) currently faces. First, he mentioned that the ICC cannot meet the demands for investigations due to insufficient resources. However, he stressed that the ICC will not sacrifice quality for quantity. Secondly, States do not always cooperate with requests from the ICC. In general, State cooperation is good, but sporadically, problems arise. These problems demonstrate the ICC’s dependence on the cooperation of States parties for the effective exercise of its functions. Thirdly, he acknowledged the problem of witness intimidation, stressing the need for effective witness protection regimes. Fourthly, some investigations have to be carried out in difficult and dangerous circumstances. Fifth, Mr. Stewart addressed issues regarding the security of information and evidence. Such information may be prone to hacking or other forms of intrusion. Sixth, he discussed the misperceptions about what the ICC can do. He argued that in addressing this challenge, it is important to manage expectations and build trust. Seventh, he expressed his concern about the ICC not being able to defend itself against attacks on its validity, due to its juridical function and the sensitivities of the ongoing investigations and trials. Lastly, he touched upon the difficulties with the development of truth-finding functions of the ICC.