from inaugural lecture (pp. 26-28, without notes 139-141):
10 Conclusions
This inaugural address arrives at its main findings. It has been shown that at
the very heart of a sophisticated law system lies the principle of separation of
powers, as being a principle of ‘natural justice’, a principle which – as Charles
de Montesquieu demonstrated in 1748 – might have attained the status of a
jus cogens norm within international law. It was furthermore shown that this
doctrine is imbued with two exponents: external and internal separation of
powers.
The practice of international criminal tribunals has yet demonstrated that –
mindful that international law as such is not equipped with a strict independent
legislative organ – the judiciary within these international criminal tribunals
is (indirectly) involved in the law-making process. Although compared
to the ICTY and ICTR, the ICC judiciary is more modestly empowered to
draft the Rules of Procedure and Evidence, it is fair to say that the doctrine of
external separation of powers is not firmly rooted within the ICC system.
When it concerns internal separation of powers, the analysis of the ICC
practice reveals a similar outcome. Several precedents within the ICC practice
are indicative that this doctrine is not strictly adhered to. Several Regulation
55 rulings attest to this observation, while also the Pre-Trial Chamber ruling
in the Flotilla case comes close to an erosion of said doctrine. Even when the
ICC system is predicated upon a ‘truth finding’ process, it should be mindful
of the external effects of a non-observance of the principle of internal separation
of powers. The primary essence of a law system is not to protect society
against the individual but rather to protect the individual against the power of
the State. The laws of international criminal tribunals should serve the
same overarching purpose.
The separation of powers doctrine could be seen as an exponent of said
‘social contract’ theory; its rationale is to prevent arbitrary decisions and to
ensure fundamental rights to freedom. Therefore, the major (adversarial) law
systems in the world do not embrace a practice whereby the judge proprio
motu may initiate a change of the charges. The latter notion is to be
deemed of greater value for mankind than any ‘truth finding’ argument. It is
in this spirit that the following proposals are suggested to the institution of
the ICC:
(i) The Assembly of States Parties should have no standing when it concerns
the interpretation and application in concreto of Rules of Procedure and
Evidence, nor should it have standing to amend the RPEs pending an
ICC trial in order to achieve a certain legal outcome;
(ii) The test for judicial review under article 53(3)(a) ICCSt. should be that of
‘patently unreasonable test’;
(iii) Regulation 55 should be deleted in its entirety or, in the alternative, the
text of Regulation 55 should be amplified in that the words ‘at any time’
are deleted and instead the words ‘timely before the start of the trial’ (that
is the Prosecution case) are included.
(iv) As the potential detrimental effects on the rights of the accused increase
(for instance, change of liability mode) the test of Regulation 55 should be
stricter.
(v) The judges should not be empowered to invoke Regulation 55 proprio
motu; rather, it should be the exclusive responsibility of the Prosecutor.
(vi) Finally, in terms of external separation of power; the rule-making power
within the ICC system should preferably be transferred to an independent
organ or body (of experts).
These six suggestions will harness the institute of the ICC against challenges
pertaining to lack of legitimacy and fairness. At the same time, it will endorse
the most valuable right of mankind: freedom. As expressed by the former
President of the United States John Quincy Adams arguing the Amistad case
for the Sierra Leonean captives before the US Supreme Court in 1841 in order
to abandon slavery in the US:
‘Well, gentlemen, I must say I differ with the keen minds of the South and
with our President, who apparently shares their views, offering that the
natural state of mankind is instead – and I know this is a controversial
idea – is freedom. Is freedom. And the proof is the length to which a man,
woman or child will go to regain it once taken. He will break loose his
chains. He will decimate his enemies. He will try and try, against all odds,
against all prejudices, to get home.’
Ik heb gezegd.