Interview with Claude Jorda, judge at the International Criminal Court Based on your experience as a former judge at the International Criminal Tribunal for the former Yugoslavia (ICTY), how has the creation of a Pre- Trial Chamber at the International Criminal Court (ICC) been useful?

There was no pre-trial phase at the ICTY even though in 1999 President McDonald introduced the process of case status hearings. I came to the ICC because of the Pre-Trial Chamber. There will always be procedural issues cropping up at the ICC prior to the actual trial. However, thanks to the work of the Pre-Trial Chamber, these types of issues can be dealt with before the trial begins, which greatly simplifies the trial. We cannot use the Nuremberg trials as an example, were everything was wrapped up in nine months, but it is unthinkable to have trials that last over four years, such as the case with Slobodan Milosevic. The issue of trial duration is essential for the credibility of international criminal justice. In the end, time is on the accused's side. Up till now, I was thinking in terms of approximately four months for the preliminary phase, four months for the trial and four months for the appeal. I do not know if this is too ambitious. At any rate, a trial should never last more than eighteen months total. This is vitally important for the victims, especially before a court that specifically provides for victim participation in its statutes.

Does the Pre-Trial Chamber shift power from the prosecutor to the judges?

It is not a shift, but a rebalancing of power. I would not say that the ICC prosecutor is supervised, but that his work is monitored. He does have to be accountable. That's the tradeoff for the considerable powers that the States Parties have given him. However, he does face major constraints in a geographic zone where politics and judiciary are very unstable. Even if international criminal justice is part of the political order, we as judges have a duty to keep it out of politics. We are here to keep it anchored in the law.

The Chamber that you preside is in charge of the situation in the Democratic Republic of Congo (DRC). People are currently incarcerated there who are potentially serious suspects for the ICC prosecutor but the court has not issued any orders. In delaying the requests to transfer certain suspects, how can the court avoid abusing this pre-trial detention?

First of all, there is something new. The Pre-Trial Chamber can designate an "ad hoc counsel" for the defense. This person deals with defendant rights before the case reaches the trial chamber. The accused him/herself then decides if this lawyer should continue to defend him/her. As far as protecting the rights of suspects in the DRC, a consortium tasked with defending them can bring the matter to our attention, but this has not yet happened. The chamber can also ask States Parties and international organizations to provide information necessary for the defense. However, they have to have the information in order to act on the request. Consequently, the court has adopted a standard that allows it to obtain the information it needs to act. This is similar to the powers of the "examining magistrate" in the French system. But as French Marshal Foche said, one has to "show one's strength in order to avoid using it." I think that in this precise matter, NGOs could play the important role of being a liaison between victims and the court.
We must realize that the really major innovation at the ICC lies in the role of the pre-trial judges who, to a certain extent, serve as a counterpoint to the prosecutor with the sole objective being to ensure that all purely procedural issues are resolved by the time the case goes to trial. The goal is that when the accused comes before the judges, we can focus on the actual merits of the case.