1.What made you decide to embark on a career in international criminal law? Did you know as a student of international law that your main focus would be on international criminal law? How did you develop an interest in this field? Do you have a specific area of expertise whitin this field?
I remember that since I was a child (aside from the dream of any little girl to be a ballerina) the only profession I saw myself practicing was law, in particular criminal law. International criminal law was not necessarily the main focus back then. Now, as I look back on my childhood and reflect on the singular purpose I saw for myself from such a young age, it is my particular sensitivity to the suffering of the defenseless and the aspiration of a little girl to protect the vulnerable, to strive for truth and justice. This may sound somewhat naïve, but this is actually what has driven me from an early age, this is what I remember.
My sense of purpose never changed throughout the years, resulting in a PhD in criminal justice, then a prosecutorial career followed later by a membership with the Bulgarian bar, a full professorship in criminal justice and international criminal law, a Judgeship at the International Criminal Court (ICC) and now a Judge and President of the Kosovo Specialist Chambers (KSC). The trajectory of my career might explain my gradual growing interest in the field of international criminal law.
Performing duties in the field of international criminal justice requires expertise in criminal law, procedure, humanitarian law and human rights as well as a profound knowledge of evidence law. Thus, efforts to master all these closely related areas should be an important and daily part of the professional development of everyone dedicated to international criminal justice. However, to provide you with a more precise answer, apart from my knowledge on international law related areas, evidence law is of particular interest to me.
2. While doing research about your work, I stumbled upon an interesting quote of yours in which you compare judges to racehorses! The quote is ‘Judges are like racing horses that are just waiting for the pistol to let them do their job’. What exactly do you mean by this? Are you referring to the spirit or attitude an international judge must bring to their work? Are international judges very eager ‘to do justice’? Is their eagerness larger than the patience they are required to have, considering that international criminal trials are lengthy processes that often take many years?
Yes, I do remember using this metaphor to describe the Judges on the Roster of the KSC (Roster). What I meant was the preparedness of the Judges to engage with any case the Specialist Prosecutor refers to Chambers. Since their appointment to the Roster, my fellow Judges have been involved in a variety of activities. These activities include the adoption of the Rules of Procedure and Evidence, workshops during which Judges discussed working papers drafted by their peers on some of the most complicated questions in the field, colloquia with distinguished experts on specific topics, allowing the Judges to immediately engage with the cases once the relevant panel is seised, which in turn prevents delays in the proceedings. It is a well-known saying that “justice delayed is justice denied”.
The KSC Judges are respectful of the universal standards of fairness vis-à-vis the suspect, the accused and the victims, in particular that criminal proceedings should be conducted within a reasonable time. To that end, we have reflected thoroughly in our statutory documents and during profound discussions, on the effectiveness and efficiency of proceedings before the Specialist Chambers. Accordingly, our highly professional and committed Judges certainly show eagerness to do their work in the best possible way. This unconditional dedication to the mandate of the KSC should not be misunderstood to suggest that the Judges’ ‘eagerness’ would compromise the fairness of the proceedings or the quality of their judgments. To the contrary, I am convinced that we will provide solid jurisprudence and excellent models for judicial practices.
3. Last month, the popular American Supreme Court Justice Ruth Bader Ginsburg passed away. It turns out that among our community members in the Peace Palace, she was a favorite legal personality, even by those who are not from the US. She famously said: “When I'm sometimes asked: 'When will there be enough [women on the Supreme Court]?' and I say 'When there are nine,' people are shocked. But there'd been nine men, and nobody's ever raised a question about that.” When it comes to the number of female judges serving on international courts and tribunals there is still much left to be achieved. What’s your personal opinion on the progress has been made in recent years in getting more female judges to serve on international courts and tribunals? Do you think there is reason to be optimistic on this subject?
Let me start by saying that I was deeply saddened by the news of Justice Ruth Bader Ginsberg’s death. She was a trailblazer – a brilliant legal scholar, an excellent Judge and a true humanitarian. I had the honour of meeting Justice Ginsburg at lunch with her, during which we exchanged views on a variety of topics.
The presence of women in any sphere of our life, including female judges on the bench of international courts and tribunals is a central criterion for the maturity of our society. Gender equality is an acknowledgment that expertise and professionalism, irrespective of gender, is necessary to ensure a fair and just system.
I think that Justice Ginsberg would agree that while our field has made some important achievements when it comes to female Judges at the international courts and tribunals, we have a long way to go before we can truly say that we have achieved gender parity at these courts and tribunals. A quick survey of the international tribunals shows that on average, women make up at most a quarter or, in a good case such as the ICC, a third of the total Judges at any given international court or tribunal. This is, without a doubt, better than nothing. However, more should be done to support qualified female Judges at the international level. If we want to ensure that our jurisprudence is reflective of our international community – is reflective of all of us – we must go to greater lengths to ensure gender parity among international Judges.
That being said, I am optimistic that we are advancing in the right direction. That we are more mindful of the balance that must be achieved when it comes to gender in the selection of Judges, along with the undisputable requirement – regardless of gender – of professionalism and commitment to justice. I think that awareness surrounding this issue is steadily increasing, which is a promising sign. And States are slowly starting to recognize that they need to step up and support their female legal practitioners for positions of Judge at the international level. However, we must do more, we must make greater efforts, so that one day, gender parity among Judges at the international level is no longer something we all strive for, but is something that is simply a given.
4. On September 18, 2020, the Dutch government announced that it has informed the Syrian government of its intention to hold Syria accountable for human rights violations under international law, specifically for torture under the UN Convention Against Torture. This decision could eventually lead to a case at the International Court of Justice. If this happens, it would not be the first time that the ICJ deals with an issue of international criminal law. Most recently, the Gambia filed a case against Myanmar for violating the provisions from the UN Genocide Convention (Rohingya Genocide Case). When the Dutch government announced its decision, some international lawyers pointed out that the ICJ is a non-criminal purposes court, meaning that if the case between the Netherlands and Syria does make it to the ICJ, the decision would have little to no impact on the lives of the Syrian victims on the ground, nor would it lead to an end of the suffering there.
What are your thoughts about this? In what way would such a judgment contribute to the development of international criminal law?
Indeed, the nature of the International Court of Justice (ICJ) mainly concerns state responsibility (a court with a ‘non-criminal purpose’ as you call it) that results in reparations for damages to be paid to the relevant state, while international criminal tribunals directly attribute individual criminal responsibility to those found criminally responsible. Consequently, the grave nature of the crimes might result in handing down lengthy sentences and the deprivation of liberty. From this perspective, one may argue that international criminal tribunals have a more deterrent effect or a stronger impact on victims. This difference in the nature and scope of its cases does not necessarily mean that the ICJ has no or less impact on victims and the suffering they endure. To say otherwise would not be an objective assessment.
At times, the ICJ has been involved indirectly in triggering criminal proceedings, which would amount to individual criminal responsibility similar in effect to courts with a criminal purpose. For instance, the ICJ could be asked by either the claimant or respondent to order the taking of immediate and effective steps to submit persons to trial before the appropriate judicial authorities who are suspected of having committed international crimes such as genocide. Examples to this effect are cases before the ICJ such as the 2015 case of Croatia v. Serbia or the 2012 case of Belgium v. Senegal. In the latter case, the ICJ unanimously found that Senegal ‘must, without further delay, submit the case of Habré to its competent authorities’ for prosecution if it does not extradite him. Following the ICJ’s pronouncement in this case, Habré was indeed tried and sentenced to life imprisonment. The Gambia genocide case currently before the ICJ is another example where the Court’s order of 23 January 2020 on provisional measures has an impact on Myanmar’s actions towards the Rohingya population. In this case, Myanmar was ordered, inter alia, to take steps to prevent further genocidal acts by its own forces or by other groups acting within its territory over which it has control.
The judgments pronounced by the ICJ so far, which have an international criminal law/human rights dimension, revealed their wide impact not only with respect to victims, but more broadly on the field of international criminal justice as a whole, including the work of international criminal tribunals.
Hence, despite the specific mandate of international courts or tribunals, be it of a criminal nature or otherwise, each will have an effect one way or another on international justice, on the conduct of states and on the fate of people. Thus, lodging an application before the ICJ by the Dutch authorities against Syria could potentially lead to similar results, which would certainly have an impact on victims and the process towards ending or reducing their suffering.
5. On April 23 of this year, the first trial worldwide for war crimes in Syria took place in a national court in Koblenz, Germany. Two former Syrian government officials are charged by Germany’s regional court in Koblenz with crimes against humanity. Many lawyers and investigators consider this trial a watershed moment in history and a first step towards accountability for the victims.
What’s your opinion on these national cases dealing with international crimes? What possible effect can they have internationally? Do you think other countries will be more inclined to follow Germany’s example? Do you believe these cases could potentially create a road towards criminal justice on an international level as well? Perhaps through the establishment of an international tribunal?
It is unfortunate that the UN Security Council could not find any consensus in referring the Syrian situation to the ICC. The establishment of the International Impartial and Independent Mechanism is an important development in order to secure the evidence for any future international or domestic criminal trial addressing Syrian atrocities. In order to ensure that there will be no impunity, states, as far as their legal system allow, should address those crimes as a matter of urgency.
The case you refer to reflects the inclusion in Germany’s legislation of universal jurisdiction, an approach that is also followed by a number of other domestic legal traditions. This case handled by the Koblenz regional court should be commended as well as the engagement of the judicial authorities of other states in adjudicating crimes against humanity, war crimes and other crimes from the spectrum of crimes often described as unimaginable atrocities against people. Germany as well as France, and Sweden have addressed Syrian crimes committed by government officials and a number of European countries, including Germany, Austria and Sweden have prosecuted and convicted former rebel fighters of war crimes.
These laudable attempts of domestic courts are unlikely to result in prosecuting those who bear the greatest responsibility. However, as long as there is a stalemate in the Security Council to create an ad hoc tribunal or to refer the situation to the ICC, we should be thinking of other ways of addressing these crimes against the Syrian people. For example, the idea for the creation of a regional court could be contemplated, which would exercise authority delegated by those states that have reflected the principle of universal jurisdiction in their domestic systems.
6. What do you consider the biggest obstacles or challenges that international criminal justice is facing today?
International criminal justice as it developed after World War II, is a revolutionary advancement in responding to some of the worst episodes in recent history against the life and dignity of man. The emergence of this field sent the strong and unequivocal message that attacks against the main values of humanity will not be tolerated. Each international court and tribunal made its contribution to this end – the International Military Tribunal at Nuremberg, the International Military Tribunal for the Far East, the Special Panels for Serious Crimes (East Timor Tribunal), the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the United Nations Interim Administration Mission in Kosovo, which set up panels in the Courts of Kosovo pursuant to Regulation 2000/64, and the War Crimes Chamber of the Court of Bosnia and Herzegovina, to name a few. It is my firm belief that the KSC will make its own important contribution to the fight against impunity and the natural strive of people to justice. Still there are many challenges facing international criminal justice and the operation of national and international criminal courts and tribunals.
Some examples of these challenges include: 1. The lack of sufficient and timely cooperation either at the inter-state level or between one or more states and international courts and tribunals; 2. The question of witness protection and the various complex measures involved in this process; 3. The direct involvement of non-state actors in recent armed conflicts resulting in having to conduct investigations and prosecutions of international crimes; 4. The need to carry out investigations in high risk conflict zones, where conflicts are ongoing. Thus, the support of states, be it political or financial, is vital for the effective functioning of international courts and tribunals.
It is also of very importance that states nominate highly qualified professionals to serve as Judges, Prosecutors and seconded staff members. States should also take a strong stand in political discourses on matters which could seriously affect the proper and effective conduct of international justice. If the international community cannot speak in one voice when heinous crimes are committed, and if they refrain from supporting those institutions created to hold these people accountable, justice and the rule of law will suffer. Courts and tribunals, on their part, should never cross the dividing line from their role as an independent judiciary to politics.
There are also other obstacles and challenges within international courts and tribunals, which should be handled by these institutions themselves. Indeed, principals and elected officials of international courts and tribunals are best placed to detect problematic areas and practices in the daily operation of their respective institutions and should be accountable and take responsibility for those challenges as well.
7. What advice would you give to students who want to become international criminal lawyers or judges at International Criminal Tribunals?
Justice – whether domestic or international – is one of the most fascinating and rewarding fields in our society, whereby one may face different challenges ranging from enormous amounts of work, few vacation periods and exhaustion, to frustration at the lack of or slow moving pace of results obtained. However, the reward of delivering justice to the victims of the crimes committed, to holding accountable those responsible for these very crimes, is what makes it all worth it. Like those of us who have been practicing in this field, young students aspiring to be Judges or legal practitioners should always continue to grow and learn, should develop the strength to stand firm, notwithstanding the obstacles encountered along their way and should strive to uphold their duties, once selected for posts, to the best of their ability, independently, impartially and conscientiously. They should never forget that everyone’s effort are cherished and appreciated and they have to be ready for the enormous trust placed in all of us in this field by society.
The Peace Palace Libary would like to express its gratitude and appreciation to the KSC for granting us this interview with Judge Trendafilova. We would like to extend a special thank you to Ms. Nadia Zhivkova, legal advisor from the Embassy of Bulgaria, for her assistance and effort in helping the library with this interview request.
[add_blog blog="Interview President Kosovo Specialist Chambers : Judge Ekaterina Trendafilova"]