Judge Cotte: “We are making progress”

Interview with ICC judge Bruno Cotte, presiding judge at the second trial at the ICC*
By Franck Petit, The Hague
The Katanga-Ngudjolo trial has ended last month. Pending the judgment, what practical experience did it bring to the International Criminal Court (ICC)?
[related-articles]It is the second trial to be heard by the ICC and we were able to “get it in order” to be tried in one short year. For various reasons, the chamber that heard the first case took two years. So we’re making progress. In order to achieve an expeditious trial, we read the prosecutor’s witness statements in advance, which helped us to determine with him which witnesses had to appear and how much time to plan for their testimony. So we managed to considerably reduce the number of hours initially suggested.
Nevertheless, we’ve already gone through four years of procedure, without the appeal…
I am a man who likes things to get done and I would have preferred that this case be completed more quickly… which would have perhaps made it possible for me to hear a second case during my short mandate! There are several explanations for such a length of time – not least, the real complexity of new legal questions brought before the Court. Certainly, some of them could have been dealt with at the preliminary stage. In hindsight and given the experience gained, it would be worth rethinking the exact role of the pre-trial chamber.
Do you find such a length of time acceptable?
We are all aware of the need to observe a reasonable deadline. The European Court of Human Rights has been reminding us of this for years. Clearly, for a French judge, four years is long. It is therefore necessary to move more quickly. At the same time, the sentences for the crimes addressed by the ICC—such as genocide, crimes against humanity and war crimes—are sufficiently serious to keep us from rushing. In my opinion, there is an inherent tardiness in these types of cases.

But… is acquittal really an available option in this system?
It is important, essential even, that those who appear before the ICC as suspects and then even as the accused, are not considered guilty in advance! Don’t forget about the presumption of innocence! If the trials take a long time, it is precisely because it is necessary to gather as much evidence as possible to be able to make a decision with full knowledge of the facts. There would be nothing worse than the feeling that the die is already cast before arguments even begin.
Did you try to hold hearings in Congo?
Indeed, the Court can be made visible through hearings held on site. However, when, as in the case I’m dealing with, the region involved remains “insecure,” that becomes extremely difficult. In fact, there would be nothing worse than hearings held on location but in a security context that would cause the ICC to appear to be a military court. Hearings held behind barbed wire would have the opposite effect of what we’re looking for. On the other hand, the on site visit made by the Chamber seems to me an indispensible procedural act. To a certain degree, even if it is reduced, it also meets this need for visibility. Above all, through the findings made on site, it contributes to the search for and discovery of the truth.
Should the defence have more means?
An excellent defence is indispensible… especially, again, when we think of the sentences at stake. That is a frequent question in our debates—defence teams and representatives of victims deploring the inferior means at their disposal compared to the prosecutor. Yes, it is a subject of debate. In any case, one thing is certain: the defense must be able to fully fulfill its role.
And what needs to be improved on the prosecution side?
Of course, we can always do better. Their investigation methods are sometimes criticised. In this regard, Trial Chamber I found [in the Lubanga case] that the use of intermediaries, perhaps insufficiently monitored, had most probably been excessive. In hindsight and aware of the difficulties encountered, it would be a good idea to rely more on forensic investigation techniques. The court should be able to improve in this area in order to present evidence likely to reinforce the testimonies that we know are often fragile.
(*) Revised and amended by judge Cotte, original version in French.