The challenges faced by the International Criminal Court | Guest: Matthew Nelson

Hello and welcome to the University of East Anglia School of Law Podcast Series, hosted by Dr. Rishigulati. Hi, my name is Rishigulati and welcome to the first episode of the U Year Law School's Podcast Series. Today, we will be talking all things International Criminal Court with Matthew Nelson. That is a ledger in evidence, criminal and international law at the University of New South Wales in Australia. He's previously been a central prosecutor in Australia, and has worked as a litigation solicitor for various government departments. Math has a background in international criminal law having done a masters in London in this area. After several years, Math also worked for a minority, assisting in the representation of victims of mass atrocity crimes before domestic courts. Now, establishing this national criminal court was no doubt one of the major achievements of international law. The ICC is at the apex of the international criminal justice system, but we want to today explore in more detail how the ICC has actually worked in practice. The Russian and Russian of Ukraine has brought the ICC's role into sharp focus and we will be discussing this at the end of the podcast. We try to cover some of the most salient issues that the ICC today faces and is likely to face in the foreseeable future. Welcome, Math. Thanks for issues, pleasure to be here. The first issue, Math, I wanted to talk about, to really set the scene, was if it could just provide a brief background to the ICC when it was created, just to set the scene for the list down. Yes, certainly. So, the background began just following some of the work of previous tribunals and a realization, certainly within the international community, there is a need for at least some permanency to an international body to try certain crimes, which we can go into a bit later. And so, it sort of culminated in the creation of this body in 1998, but of course, a lot of preparation was done before and negotiations around the creation of the body ultimately, sort of coming into existence and its jurisdiction, which we can go into, a bit later commencing, not until sort of the early 2000s. The concept and how it came about was certainly in the works in the early 1990s and ultimately came about for a treaty, which is obviously quite a unique concept. It's certainly not part of the United Nations, it's a product of a treaty, and so it's laid up as an international organisation by its constituent members, who are states or states parties to that treaty, which we call the Rome Statute. So, in terms of how it operates, we can obviously discuss that in a bit of detail, but the concept certainly emerged from at least a consensus, emerging consensus that there was a need for a permanent court that could at least handle prosecutions, investigations, or crimes of international consent. And you know, I should say that in the 1990s, to prosecute the atrocities that were committed in the former Yugoslavia and the atrocities that grew under, there were sort of specific international criminal tributes created and the fall of the ICT by the ICTR. So, indeed creating a permanent international court was probably something that was contemplated after the Nuremberg trials after the Second World War. So, it undoubtedly one should, I think we can accept that was quite a remarkable development. Now, how it has transpired since then is a different story, but I guess we're an agreement here that this was quite a remarkable development for the international system of such. Indeed, and one thing we can reflect on a bit later is, I mean, there have been sort of the ad hoc, if I can put it this way, such as the ICTY, ICTR and even the international military tribunal following World War II that have emerged since. So, whilst we've had a permanent court since 1998 and its jurisdiction effective since 2002, there have been other international or quasi-international courts that have emerged since, and so that I think will lend itself to a bit of a discussion about why was that necessary such as the extraordinary changes in the courts of Cambodia as well as the special courts. Sierra Leone, the special tribunal for Lebanon, he's all emerged after or sometime around or after the ICC, so it's interesting as to why they were necessary and we can look into that particularly because they take on a model that some have proposed in respect of the Ukraine and Russia conflict. That's right, and before I think moving on with some of the discussion, we should identify at the outset that if you look at some of the major powers whether it's US or Russia or China or India, they're actually not potty to what's known as the Rome Statue of Justice of the Treaty that created the ICC and this, no doubt, is the only one which is seeing that impacts what the ICC can actually do because at the end of the day it's an international or treaty court. The state's sovereignty is also one of the core aspects of international law and if a state or country has not signed up to a particular treaty, then it creates a lot of complications in terms of prosecuting non-party states or leaders from these non-party states or nationals of these non-party states, you know, for obvious reasons, be the principal one being that they haven't signed up to the court. Obviously, there's nuance to that that we get into, but is that something that even at the outset means that we should limit our expectations a wanted court can actually achieve, given that some of the big powers actually not party to the Rome Statue. Well, I think so and I mean that's, we have to be very realistic about and as you say, there is nuance to it of course, you know, conflicts occur outside the jurisdictions of states that may not be a party such as the US and of course the activities of major powers that haven't been subjected to the ICC's jurisdiction are vulnerable to it based on whether or not the actions occur outside that jurisdiction, but generally speaking, I mean, as you say, the legitimacy of the court may not be endowed, but in terms of, you know, the reactions that some of the powers that aren't parties or states parties to the Rome Statute and therefore subject in immediate sense to the jurisdiction, perhaps does you should certainly come with it or approach looking at the ICC from a particular perspective and appreciation that, you know, when you look at individual investigations, when you look at individual prosecutions, you have to keep in mind that this is a court created by its members, it's not a court that exists in some other sort of positive sense, it's created by its members and therefore it's limited by how its members operate and who is a member to it. So that, you know, even understanding why certain cases have been brought, where they have been brought is important to, always important to reflect on, you know, how the bodies constituted the limitations in that respect in terms of sort of levelling criticism, which are often certainly justified or open to be made, it's always important to keep in mind. But the court, there's a lot of innovations within the court, you know, they publish a lot of their documents in languages, including Chinese, Russian, you know, there is a way in which they're trying to facilitate a greater uptake to their own statute, whether or not, you know, those sort of very bats minor innovations are going to achieve, and he allows girl changes another question. But it's certainly, you have to approach it with the expectations that this is an international organisation created by members and it's not made up of all members that happen to make up the world. Listen, that's a really interesting point, that maybe it's worth delving into for a sort of minute or so, so that the ICC is obviously as the name suggests a criminal court. But it's also an international organisation, and you know, there's hundreds of international organisations, I mean, obviously, you were in WTO, WTO, I know there are quite commonly known organisations, but the ICC is sort of quite a unique sort of organisation in the sense that it is not only a criminal court, but also an international organisation, which means it operates maybe a little bit different from how, I mean, you know, Australia, so I'm using a common example, how a stupidia court of record of that adjudicates criminal cases would operate in a domestic system, so could you maybe shed a little bit of light, a little bit of light on how the sort of structure, the nature of the international criminal court as an international organisation, so it differs from what, you know, we would typically think of a criminal court, say, the domestic jurisdiction? Yes, certainly, it is, it is interesting to think about the international criminal court, as you say, as an international organisation, so it's not only made up of a judicial organ, which is the chambers of the court itself, and in fact, within the international criminal court, the judicial organ, but it is in and of itself a hierarchy, it has pre-trial chambers, it has trial chambers as well as appeals chambers, in the same way that you would ordinarily have a hierarchy within a domestic judicial system, but as you say, there is also the office of the prosecutor, which sits within that international organisation that we call the ICC. Now, of course, in Australia, or even in continental European countries and those countries that have inquisitorial systems, you wouldn't necessarily refer to a court and a prosecutor interchangeable, even though the relationship between the two might be very different in common law systems and in inquisitorial systems or civil law systems. The way in which the ICC has had to operate, it has had to alter its practices in light of the fact that it's created, comprised of multiple organs, and if you were in sort of a crude assessment, you would sort of class the prosecutor or the office of the prosecutor whilst it's an independent body within the ICC, it serves as a bit of an executive. And you have, of course, a judicial organ as well, and then legislature, if we can dig about that way, is the assembly of states' parties, that is representatives of those states that make up, well, our symmetries rather, to the Rome's statute. So, in many respects, the court itself is a bit of a government with sort of three T-arms of government, the judicial organs, but when you look really at the court itself and the operations of the judicial organ, there are a lot of similarities to what you would find in criminal courts, in Australia, in common law countries, but also in civil law countries say in continental Europe or South America or parts of East Asia. And you have particular adversarial aspects to the prosecution, or to the proceedings at least before the judicial organs, such as cross-examination of witnesses, as well as privileges against self-incrimination, some instances as well as, you know, the right, necessarily to give evidence, perhaps to call evidence in your own trial, the same standards of proof that you might see in common law jurisdictions as well. So, there are a lot of similarities. The one thing that always strikes me, having come from a common law background looking at the ICC is the way in which, so the prosecutor works with the court and how matters are brought, the commencement of investigations or preliminary examinations as well obviously operates in a slightly different way, and that is a brought before pre-trial chambers or particular rulings, which can happen as well in common law jurisdictions. So there are a lot of similarities in that sense in the trial, it's silk, you know, it will be very familiar to common law lawyers, obviously there are significant differences, including obviously a much more prominent involvement of victims and victims council in the ICC compared to what you would find in common law jurisdictions, but it's a recognisable system and I think we can sort of discuss it in a bit more detail, but you can see efforts by the ICC, particularly the judicial organ and some of the chambers rulings on a fair trial rights, trying to sort of harmonise the rights that you would see observed in common law systems and the rights you have served in inquisitorial systems. So it's not in an enviable position where it's grappling with states of how very different systems are trying to create some uniformity, at least in fair trial rights in proceedings before it. But that's really interesting, and I mean, I really don't like the analogy of the sort of roughly speaking judicial legislature and executive, and it goes without saying that if I continue to use that analogy, that the separation of powers, how important that is to keep that maintained within the international institutional structure to make sure that every organ can work independently and really get on with what they're mandated to do. Now, the next thing I want to, you know, in terms of setting up the scene, is talk about some of the key limitations that the ICC faces, but you know, the ideal of this discussion is to have a discussion that as many people as possible can access it. So I'll try to keep it as a standard as few technicalities as I can, but really the key limitations before any court, whether it's international or domestic, are about the jurisdiction. So, you know, loosely speaking, the power of the court. One day can actually do who they can prosecute for international courts, the issue of territorial assault becomes relevant, state consent, issues of sovereignty are, you know, always kicking around as well. So I want to talk about some of these fundamental limitations that the ICC faces, which again, perhaps should give us a little bit of caution as to what realistically we can expect from the court, because as I said, you know, we discussed the beginning, it's, it's an international court, and it just kind of really gone and do whatever it wants. It's got a statute and its powers are limited by the statute that created it. And I think it's important to maybe stress a little bit about what those limitations are. Maybe just for a comedian's mass, if I could divide this discussion into two segments, the first limitation would concern the types of crimes that the ICC prosecutor can actually be charged in the type of prosecutions that can take place of the ICC. Could it just maybe shed a bit of light about that? Yeah, certainly. So, as you say, as an international criminal court, and we can sort of talk a bit later about reasons why it was created beyond what we've already discussed at the start, there are very few crimes in terms of broad categories that the court is able to hear before it. As you say, it doesn't have jurisdiction with respect to anything that happens in any country. Rather, it's limited to, say, 14 crimes of international concern being genocide crimes against humanity, war crimes, and the crime of aggression. Now, it's important to appreciate, and the Rome Statute is a very, very good and comprehensive treaty that sort of enumerates in a bit more detail beyond that. So we don't just have the term genocide, don't just have the term crimes against humanity. The Rome Statute steps through what that can include, and beyond things like murder, torture, sexual slavery, and forced disappearances. So there are a lot of types of conduct that would be called by these offenses, but one must appreciate they occur in a particular context. And so, in that sense, it isn't very even limited jurisdiction when you think of the types of crimes that are prosecuted in any criminal court in a domestic setting. So that certainly, as a subject matter, is what limits the court and what it can do. And can I little bit talk about aggression with you because, and I'm going to circle back to this letter in the podcast, because aggression was added later on into or to an amendment into the statute, what's the status of aggression, the crime of aggression in the Rome Statute? Yes, certainly. So it is, as you said, it's a slightly checkered history in terms of its, in terms of the court's ability to actually hear cases in respect of aggression. The crime itself, I mean, as you say, we can look at it in the context of the conflict in Ukraine. Now, it's obviously a defined term in the ICC statute, but as you say, so the compiler amendments impacted when the court could begin to hear, would have jurisdiction over crimes of aggression, and also is limited, the way in which it was drafted at limits, who could be tried for a crime of aggression, and it's in a slightly different way to say crimes against humanity or war crimes. It limits the types of people and the circumstances in which the crime of aggression can be prosecuted. It also requires additional steps typically by state parties to bring the crime of aggression within the jurisdiction of the ICC. So in that sense, additional steps that might not necessarily have been taken by certain state parties means that it does carry a bit of a special place in terms of the crimes that the ICC can actually hear prosecutions in respect of. So in other words, the ICC can't always try aggression, so if, for example, if a state has not signed up to the statute regardless of where the crimes territorially speaking occur, you wouldn't be able to try at the ICC, the non-state party or its leaders as you clarify you're always trying to visualize, it's indeed as for aggression. That's great, yes, as nationals, those leaders, and whilst you can have the UN Security Council can refer a, as known as a situation to the ICC prosecutor, including for a crime of aggression, it would overcome perhaps those more procedural limitations, sorry, jurisdictional limitations, obviously we can discuss this in a bit more detail, but naturally with the vetoes that exist in the UN Security Council, that seems to be a bit of an unsanountable obstacle in having in a more seamless manner, the ICC dealing with the crime of aggression. Yeah, and I'll come back to this later on given that it's such a significant issue right now, but I wanted to now talk about the limitations in terms of territory, nationality, and you know, those non-subject matter, if you will, limitations that exist before the ICC, before they can prosecute particular conduct or a particular individual. Yeah, certainly, and one thing we should say, the outset as well, is that the ICC's jurisdiction essentially commences from a certain date, so it might be the date to this sort of original signatories from the 1st of July on a left to the 1st of July 2002, so crimes committed prior to that, it wouldn't have jurisdiction, and also states parties that sign up a signatories at some later date, for example, if the state signs up next year, typically the jurisdiction in respect of crimes will commence from the time in which it's enforced for that state, although they can of course make a declaration as some states have that it covers a period prior to their signing the Rome statute, or it coming into force, but as you say in terms of additional limitations, of course, we sort of refer to them as territorial and nationality limitations, the conduct that we're concerned with that might fall within the scope of those for broad groups of crimes of serious crimes of international concern, are that they must have occurred on the territory of a state over which the court has jurisdiction, so naturally if it's a state's party, then a date of a particular date that it has affected jurisdiction, that's what we refer to as territorial jurisdiction, so conduct occurs on the territory of a state's party. And that's really magical, because I mean, in the international of territories so central to the notion of sovereignty and what even the state means that if alleged criminal conduct has occurred on the territory of a state party, then there's no question that jurisdiction of the court would exist. Indeed, indeed. And similarly, as you said, that's perhaps more fundamental to the exercise of jurisdictional territorial jurisdiction in terms of domestic criminal proceedings. In addition to that, there is this nationality jurisdiction of the ICC, also enjoys in the sense that if there is a national, if the defendant rather, or a person accused of the relevant conduct is a national or a state party, then that can also enzoke the jurisdiction of the ICC out leading aside the question of the crime of aggression of court. Now, that I think Matt is a really neat background to the court, the limitations it faces. And I want to now move to something that's extremely important at the core of the system that's created at the ICC. And this is this so-called notion of complementarity. What does complementarity actually mean? And it's very requested, it's actually quite difficult to pin down, so it has a few reenies in the context of the ICC. So from a doctrinal point of view, complementarity is dealt with in terms of admissibility of matters before the ICC. But as before we get into that, broadly speaking, complementarity in the context of the ICC simply refers to the court is a court of last resort essentially. So it's not there to try every case in which it has jurisdiction, rather, it's for states to prosecute an individual over which or the crimes that they're alleged to have committed, that jurisdiction, sorry, that state has jurisdiction to try that person. And first and foremost, and it's quite clear, and it's the preamble and provisions of the rogue statute, that it's for states to prosecute individuals even for these very, very serious crimes of international concern. And so that's something that permeates a number of provisions and permeates certainly the, those who were drafting the Rome statute and those who conceived of this permanent court had always emphasized that. And when it was being drafted, or the Rome statute, the International Law Commission was emphasizing at the time that the ICC was always intended to operate where there was no prospect of a particular individual being tried or duly tried in a national court. So it was always understood or hoped that individuals would be tried in national courts, obviously those who had jurisdiction over the crimes or the national involved. And the ICC would step in in particular circumstances, and that's where we get the rules around the admissibility of cases where the court is prepared to step in in certain circumstances where a state who does have jurisdiction is not prosecuting someone or they might be prosecuting someone but not doing it in a way that accords with particular standards. So complementarity in that view when you look at any relationship with the court is that it really is intended to be a court of last resort, a complement to state jurisdictions. And that's really one point because the job of the ICC as envisaged by its creators is not to prosecute every single foot soldier who is alleged to have committed atrocity crime. It's really to one would sink, try really senior individuals who are alleged to have committed these crimes. And it can get quite difficult because if your court sort of job is not to prosecute every foot soldier but just, you know, if you will, the big guy or the big guys, you start running to this immunity issue that it's very difficult, legally speaking and practically to get its sitting head of state or a senior sitting person, if they're still in power, get the arrest and deliver them to the court. So it's, you know, we showed up, really explain that it's quite a difficult situation for the ICC because if your job is not to get the lower people and that should be left in the domestic courts. And if the ideally, if the intention is to get caught and caught the big guys, then you should say that also taking to count how difficult it can be to get arrested leaders. And there was not that example of this and the al-Bashir case, Matt wasn't it? Indeed, and some states being publicly reprimanded by aspects of the court and the international community, but also formal condemnation of, say for example, Jordan in terms of not taking action as a state party. Can you explain what happened? What would that happen there because our list does not be aware of this situation? Yes, certainly. Well, there was a view taken and some of it stems from an interpretation of the Rome statute that al-Bashir, which there was a warrant for his, and it wasn't Sudanese, he's had a state. Yes, certainly. And part of the office of the prosecutor's investigation into the situation in Sudan. And he had travelled to various jurisdictions, including to Jordan. And Jordan, well, the time was the state's party to the ICC. And there are ways in which the state's parties to the ICC can be condemned. It might be that done through public statements, or there's a more formal process. The expectation was it appeared that state's parties would effect an arrest, give effect to the arrest and arrest warrant issued by the ICC, use of pretrial chambers or trial chambers. And that wasn't done in the case of Jordan. Now, naturally, when you think about the arrest of a head of state, the sitting head of state, your mind immediately ought to jump to immunities, head of state immunities. The difficulty that was created by that situation was a fight over whether there was actually a head of state immunity in respect of arresting President Al-Bashiak, or was that head of state immunity really only not protected in international criminal proceedings for crimes, all serious crimes of international concern. So it became slightly complicated as to whether or not he enjoyed head of state immunity from arrest, pursuant to an arrest warrant issued by an international court, which was essentially the fight. Yeah. Jordan. I mean, that could be the sumptuous of another podcast, this very complex topic of immunities. But I guess it says to conclude that at the very least, threats of international criminal court action can impact the tribal itinerary of world leaders, maybe that's something. But okay, after that's a very big detour, I want to return to complementarity and we were discussing how the ICC sits at the apex, and it's really the court of last resort. So is there, is this an ad hoc system, or is there some precision in terms of how complementarity actually works in practice? Yeah, it's a very good question. So the rowing statute, once a state signs up to it, had certain obligations in terms of giving or having their domestic legal system meet certain standards, including passing laws or amending existing laws, so that the offense is caught by the rowing statute are in their domestic legislation. And so then they are equipped, they have the legislative, will statutory infrastructure as a work to try people for the crimes that otherwise the ICC could try. So from the outset, the rowing statute itself is a document that tries to assist states in giving effect to passing laws or amending laws or revising their legal systems in order to be able to try individuals for these offenses. One thing that really important to state is that complementarity can't, in the context of the ICC, work in a very strict sense where each state passes laws that are identical to what appears in the rowing statute, or have sweeping amendments to their criminal procedure laws, their evidence laws that try to create some normative picture of a perfect legal system in a perfectly fair trial, that's simply impossible. And even in countries that are perhaps are associated with quite progressive legal systems and protections for persons accused of crimes, such as Australia, I mean, Australians laws don't necessarily strictly reflect the rowing statute, but it doesn't mean that people can't be tried in Australia for the same types of crimes. So there's always going to be nuance to how states give effect to their obligations under the rowing statute, which is certainly a nice starting point in terms of thinking about complementarity. Obviously, you're not going to be able to try an individual for genocide if that law does not exist on your statute books. But some states, and even in Europe, including France, simply amended existing laws or relied on existing laws to say that, well, what we have is sufficient to try people, even though the elements might be slightly different in different jurisdictions. So it was never going to create a perfect system even when you're looking at codified legislation or codified offenses. But it becomes even more complex when you're looking at other infrastructure in the legal's criminal justice system in a jurisdiction. And what is the involvement of the ICC in that context? And perhaps we could sort of draw on a one example where the ICC or the office of the prosecutor of the ICC, very many years ago opened a preliminary investigation into Columbia following the sort of ongoing civil conflict there, with a view to looking into crimes that have been committed that might also fall within the jurisdiction of the ICC. And for a very long process that's sort of materialized in the last few years, the office of the prosecutor has worked with Columbia authorities in terms of building capacity within its criminal justice system to fairly try those who might have committed offenses that would otherwise fall within the jurisdiction of the ICC. So that is a lot more ad hoc because it really depends on the office of the prosecutor's use as to whether or not the systems in that particular jurisdiction satisfy it as to the steps that they take in respect of the preliminary examination. And so a lot of that occurs behind closed doors because the office of the prosecutor certainly periodically publishes updates about what is taking place. But that's, I think, a somewhat unheard of aspect of the work of the ICC, in the various organs of the ICC, in a very effective means. And it's complemented also by civil society groups who are involved in assisting jurisdictions in building capacity within their legal system to try these offenses. And there is an incentive for the office of the prosecutor in the ICC as a whole, could be financial incentive to make sure that states that might may need to try or intend to try people for particular crimes against humanity, war crimes genocide, that they have the systems in place. So those domestic jurisdictions can undertake those prosecutions and investigations and do so fairly and not have to involve the ICC. And even the most senior individuals who might be accused of war crimes, crimes against humanity, genocide, even the crime of aggression, should be tried where possible in domestic courts as well. The ICC shouldn't be seen to be this body that you can sort of show the world is trying the most senior members of a particular regime or ahead of state accused of certain crimes. The state jurisdictions consistent with that complementarity principle, should be the one that's trying those individuals. And here we're really talking about the resources that it takes to bring about a prosecution from start to finish, it obviously costs a lot of human and financial resources. And if complementarity works well, then the burden on the international system, so to speak, is more manageable. So I think in that sense, it's a complementarity, it's just not a tool of legal cooperation or a coordination, but also a practical necessity given the perennial resource constraints that it's national organization space. Yeah, absolutely, and certainly with the number of people who work for the ICC, their resources are finite. I mean, they have a budget this year of to stun the 170 million euro, but if you look at the budgets of prosecutorial agencies or police and investigative bodies in each jurisdiction as well as the courts themselves, likely be comparable, not more. So it is a very, very, as you say, labor intensive, it's a very, very costly process. And the way in which complementarity can work effectively is not to just create the capacity to try a, you know, one individual for crimes against humanity in relation to certain conduct on one occasion, rather build systems that are in place for that state to be able to have a system in which they can try individuals across the board and ongoing. And so that they're really in that country, long as those systems are maintained, they would just simply be no need for the ICC. No, this is not a math course. Sorry to interrupt you, takes me to your own experience as a federal prosecutor. Now you worked in Australia, which is relatively special, it's a wealthy country with a well-developed legal system, not all states in the world have the luxury of the kind of system that you worked under. So what do you say may not directly apply to, you know, prosecutors working in every domestic jurisdiction, but it might apply to many and even to whom it doesn't, there could be lessons to be learned. No, it's, it's, for those of you who's, you know, a practitioner in courts, you realize how difficult it can be to gather evidence, investigate thoroughly, and then this evidence is admissible in a court of law. Now this challenge is exponentially higher for international proceedings, just because of the vast distances, the nature of the crimes, the transnational aspects, language issues, resource issues, it's a big challenge to have evidence, or first, investigate that have the evidence that can be presented in a visible form to a court in a domestic proceeding. Can you maybe talk about some challenges and what prosecute, what kind of things prosecutors need to watch out when they're dealing with international cases, whether the international crimes or other transnational crimes, whether it's drugs or terrorism or so on? Yeah, certainly, certainly it seems into this idea that complementarity is not some lofty ideal. States, as you say, are in far better position in most instances, obviously there are always exceptions and it depends on the nature of the conduct alleged, but in a far better position to prosecute crimes that have been committed on their soil or even crimes committed by their nationals, where they can extend extraterritorial jurisdiction over their conduct. As you said, the evidence is likely to be there, obviously there are transnational aspects to international crimes, but particularly where evidence is found or in a particular jurisdiction. If you have the systems in place to investigate this experience, investigate this if you can collect evidence, and as you say, collect evidence in a way and with a view for that evidence to be admissible, obviously please don't just simply collect evidence for the any way they can obtain it and then hope that it's admissible. Obviously, evidence is obtaining a particular way to ensure that it could be admissible in later proceedings. Now if those later proceedings are in an entirely different jurisdiction than in an international court, there are going to be differences in evidence laws in Australia, as there are differences in evidence laws in individual states and territories in Australia that alone between Australia and another jurisdiction. That's why it's quite imperative that countries have, on a more broader scale, the systems and capacity in place so they can try these types of offenses and why we have complementarity permeating through the ICC system. As you say, with transnational or crimes that have a transnational aspect that are prosecuted in domestic jurisdictions, there are also well-established systems that are in place to enable the collection of evidence that's then subsequently admissible, but that in and of itself is incredibly complex. Being able to take evidence from an individual who might be overseas can be a very complex and lengthy, costly process to ensure that it's admissible and in domestic courts. So those systems, yes, they are labour intensive, they can be costly, but they're in place and the way in which evidence is collected, which often there's a very time-sensitive aspect to the collection of evidence for international crimes, where you have that capacity already in place, it makes it a lot easier, about suggesting it's an easy job, but it makes it a lot easier and more straightforward and you can have greater certainty that that evidence could then be used as part of an investigation or at least as part of an investigation or possibly in any prosecution. So that is uniquely within the domain of states rather than an international body through the Office of the Prosecutor, who relies on cooperation, which is obviously exhaustively set out in the Rome Statute, but cooperation of states in handing over evidence in cooperation in terms of visits made by the Office of the Prosecutor and any evidence collection work done by investigators connected to the ICC. So as I say, when you create the capacity within states' parties to be able to collect evidence with a view to prosecuting for international crimes within a domestic jurisdiction, you can use existing infrastructure and it's a lot, it can be a lot simpler, as I said, I'm not suggesting it's a simple process, but a lot simpler than an international court or the ICC rather having to rely on cooperation, maybe to rely on efforts made by domestic states to collect evidence in a way that would then ultimately be admissible before the ICC. So what is the ICC doing? You refer to the Columbia example. I mean, the elephant in the rule man, this is a nice segment to the third topic, which is Ukraine and we get to the second, but before we move on to Russia, Ukraine crisis, what is the ICC actually doing right now if anything in terms of helping investigate collect evidence? Is there any kind of innovation that's happened in the recent past that you think is worth mentioning? Yeah, it's a really good question, so a lot of the work of the ICC through the Office of the Prosecutor is similar work that you can see done by tech civil society groups, but also governments as well. I mean, the Australian government has assisted many states, particularly in the region, building capacity within their judicial systems, within their legal systems to meet particular standards or to assist in the drafting of criminal codes. The same is done by the Office of the Prosecutor in particular situation. So as you say with Ukraine, the Office of the Prosecutor has been to Ukraine to assist in the deployment of forensic and investigative teams to collect evidence with a view that that evidence could be at least admissible or could be used as part of investigation of crimes of international concern, those crimes that would fall within the jurisdiction of the ICC. Further, you know, that guidance and practical guidelines have also been provided like this sort of toward the end of last year, two groups that might be working, you know, might be non-governmental organisations or even parts of governments who are trying to collect evidence with a view for that evidence to be admissible in later proceedings, whether it's domestic or international proceedings, providing practical guidelines. And the OTP worked with non-governmental organisations as well as European Union bodies in producing those guidelines to give guidance to people on the ground who are collecting evidence. And that's certainly some of the key work the Office of the Prosecutor does. Is this happening in Ukraine as we speak or other countries or it is? Yeah, absolutely. And it's part of an investigation that the OTP has into Ukraine, the extent to which, you know, the Office of the Prosecutor could go into a jurisdiction where there isn't an investigation, even a preliminary examination like there was in Colombia, is a separate question because of course that naturally involves cooperation by that state. But where there is an investigation, it does bring in certain powers that the OTP can exercise. And often as you say, it is done with a view to equipping that state or actors within that state with the information, the ability, the resources. As I said, there are team members, forensic and investigative team members who were taken to Ukraine to assist in the collection of evidence and advice on how to collect evidence. But working with civil society that Office of the OTP is not, it doesn't have an endless budget. So it works with collaboration with other countries as well as civil society organizations, non-governmental organizations to assist national authorities in working on the collection of evidence in particular. Yes, and I think it's important to hear mention because, and this is just not about the ICC. Often the international laws are derided for being a toothless tiger and not really working in practice. But I think if one sets the expectations in a way that there should be perhaps set, sometimes the national processes actually work really well. So one should not just judge, cause like the ICC as being successful or not successful based on whether or not a world leader is, you know, brought to justice. But there's a lot of painstaking work that goes on often in the public eye and often not in the public eye that is incredibly important, not just for the present moment, but for the future so that there's a historical record at the very least of what actually went on in various scenarios. So I think in that sense, it's important to mention that before one launches justifiably, often criticism of international bodies, it's important to look beneath the surface and see how much actually at the day to day level is being done. Now I wanted to move to, as I said before, like the big thing we haven't talked about as much as we've touched on it. This is the Ukraine, the Russian and the region of Ukraine. It's often for those of all of this debate a little bit, the ICC has been justifiably or unjustifiably really attacked for having too much of an African focus and really, you know, often it was known as the African criminal court. So all these sorts of jests have been made. Be that as it may, whether or not those criticisms or justifiably or not, but we are at the time where there is a golden opportunity for the ICC to really prove its worth. But circling back to our initial discussion we should still be realistic in what we expect the ICC can actually achieve, especially in terms of timeframes and so on. So in light of the limitations of the Rome statute, what maths do you think really, secondly, can we achieve the ICC, can do in terms of prosecuting? You know, people are individuals from both sides of the conflict in Russia and Ukraine who might have, who are alleged to have committed international crimes? Yes, certainly. So I think to note at the outset, obviously, there's been a lot of discussion and it's a slightly timely conversation we're having given the 12-month anniversary. One thing to keep in mind is the Ukraine, whilst it's not a state's party to the Rome statute, it has accepted the ICC's jurisdiction with respect to crimes, certain crimes committed on its territory. So Ukrainian territory, there was an initial declaration, but a second declaration has extended the time period from around February 2014 onwards. So who captured genocide, war crimes, crimes against humanity, committed on Ukrainian territory by Ukrainian nationals or Russia nationals or any nationals on that territory? So that's one thing to always keep in mind. Now, of course, the focus has naturally been on the crime of aggression. And why is that? It's okay to explain this because there's this proposal that for the aggression aspect, which is a, you know, leadership crime, there needs to be a separate tribunal and this leaks back to a little bit of the discussion we're having at the outset that for aggression, the jurisdiction is of the ICC's limited way to compare it to the other crimes. Could you share a bit of lies on that? Yeah, certainly. So the crime of aggression that ICC doesn't have, as we discussed before, jurisdiction for the crime of aggression for non-state party. And given Russia and Ukraine are not state parties, that jurisdiction is simply not there. That obviously creates an impediment for the matter to go to the ICC. As you say, the focus on the crime of aggression is because commentators are pointed to the fact that that is what's characteristic of this conflict. But it's important to keep in mind, and that goes really well back to your point around this hitabuns, the unharbled at work of the office of the prosecutor and the work they are doing to collect evidence in respect to all crimes that could be heard by the ICC or Ukrainian courts. Well, in respect to all the crime of aggression, unless the matter is referred to the ICC or to the prosecutor by the UN Security Council, then that jurisdiction isn't available to the ICC by the choice of neither Ukraine or Russia being state parties to the Rome statue. So you're left with having to come up with another way in which the crime of aggression, which of course can exist in domestic legislation, could be tried. And the debates really have centered around, as you say, the focus on leaders brings in issues around immunity. And in some courts, the immunity would protect a leader in other courts, in international courts. Head of state immunity is not necessarily to protect that person. So that's certainly where the debate has landed. But that background I have assists in understanding why the ICC just simply can't hear a case or have a case brought to it in respect of the crime of aggression, unless it's referred at this time by the UN Security Council, which of course with the veto power is unlikely that amongst the permanent tribes is unlikely to arose. I'm trying to understand this. When you take into account complementarity, so you have a situation where for the wonderful, better term, the footshows are the tried domestic courts. Leaders can be tried there, but potentially that's a technical possibility. But they tried before international courts in so far as you may have crimes against you matter to get us out of the war crimes, the ICC could carry that load. And in so far as aggression is concerned, you'll need a separate tribunal. I mean, that just sounds extremely fragmented. You know, maybe there's merit to it, but you know, it seems to, it might just create a lot of coordination problems between all these various levels of odds, isn't it? I think so, and that's certainly, I mean, when you look at this, listen to the commentary around what action to take in respect to the crime of aggression, it's really focused on what model can we use. But I agree in terms of the fragmentation that's a reason, sort of, because of the nature of the campfire or amendments, amendment rather, and we're in a situation in which it's not necessarily very easy for crime of aggression to be brought before the international court. But in this situation, you have two state parties that are affected, that I saw two states that are not states parties to the right statute that are affected. So invariably, and it goes, perhaps comes back right to the start where we're talking about, this is a international organization. It's made up of states that have signed or signatories to the road statute. It's necessarily limited in that sense. It's jurisdiction is limited based on, obviously, there are some exceptions with security council referrals, but it's jurisdiction limited based on signatories to the road statute. So this is perhaps, I mean, it's inevitable that there is fragmentation when you don't have universal uptake as it were of the road of the road statute. That would be not suggesting that would be a perfect world, but this is perhaps the solution, or these commentators are certainly promising different solutions to try the crime of aggression, which seems to be sort of heralded as a hallmark international crime that's been committed, allegedly been committed in the course of this conflict. And this is all assuming that in this case, other cases might have other leaders in question, they can even get put in in the dock, which unless there's sort of miraculous change in Russia is very unlikely to happen. So having an aggression court that potentially tries a leader in that sense here, I'm not sure how that would work out. I mean, I'm not saying that that's not a good idea, but there's a lot of questions that need to be answered here, one will think. Yeah, absolutely. If you try individuals in absentia, and obviously other, I mean ad hoc international tribunals have adopted in absentia trials, much to the alignment. Observers at time, so it, you know, anything that could be done, or anything done that could undermine the legitimacy of an outcome, say a conviction, because it was done in absentia, or because the way in which the head of state communities were not respected in the arrest process, for example, you want to avoid anything that will undermine the legitimacy of an outcome, of course, naturally, could ultimately sort of be politicized, and then get to undermine. No, that word leads to the mercy. Perfectly takes me to the final part of our discussion today. Now, international criminal law has unfortunately, or international criminal justice has got failure and failure reputation of really being victims justice, that the side that wins a war or conflict sends the leaders of the opposing side to face trial. Now, how important is that despite this victim's justice tag often being imposed on international criminal justice, that we are very conscious that this is not repeated, including in the Russia-Ukrain War? Obviously, there's a long way to go, and how one defines victory is very difficult in the present context, but that being said, how important do you think is to really be conscious of, for allegedly riddled of legitimacy, that there's not even a hint of victims justice in the delivery of justice? Yes, certainly, and it's rarely brought into focus in the context in Ukraine, given this well, of the port, military or diplomatic support behind Ukraine, which is demonstrable, I think I'm speaking out of turn, will create a lot of difficulties. And if you're looking at the ICC, there's a great obligation on the office of the prosecutor to ensure, because the office of the prosecutor is the one that brings it in many respects, because referrals are made to it, but also investigations preliminary examinations are open by it or in at the moment. The decisions of the office of the prosecutor makes in respect to examinations and investigations has to be carefully decided. And you cannot make decisions that only focus on crimes committed by particular individuals or particular nationals, where there might be evidence that crimes are put in the jurisdiction, the ICC have also been committed by nationals of a state that might have received overwhelming international support. So you're absolutely right, it will be squarely in focus in the conflict here where it's important to recognise or entertain, or entertains perhaps not the right word, but certainly to take seriously allegations or credible allegations of war crimes crimes against humanity, a bit of being committed by anyone who falls within the jurisdiction or in the territory that falls within the jurisdiction of the ICC. And you can look at whilst a great amount of support has been given to the Ukrainian authorities, including by the ICC Office of the Prosecutor. It's important to carefully look at the statements coming from the Office of the Prosecutor, they are important to recognise that there is that little impartiality about how they are approaching their investigation in the Ukraine. But I think this focus, as you sort of flagged earlier around the crime of aggression, obviously squarely falls on Russia. And there is a danger that is sometimes unavoidable of this idea of justice and unavoidable if the conclusion is that the crime of aggression was only committed by one side. Indeed, for the international rule of law to prevail, it is of immense importance that all those alleged who have committed mass atrocity crimes are prosecuted at the appropriate forum. Thank you so much, Matt, again, for being with us. We really appreciate your time. Victor, it's been a great pleasure to meet you. You've been listening to the University of East Anglia School of Law podcast series. Your host was Dr. Rishi Galati, with music by Dr. Rishi Galati, Josh Harrison and Harry Sharma, with technical support by Tom Karen.