Recently, the Hauser Center interviewed Eugenia Valenzuela of the Legal Advisory Section of the Office of the Prosecutor of the International Criminal Court.  She holds an LL.M. in Public International Law from the Erasmus University of Rotterdam; the views expressed herein are those of the author in her personal capacity and do not necessarily represent those of the ICC.

What experiences, personal or professional, led to your interest in working for the International Criminal Court?

I was born in 1980 in Peru, the same year my country’s longest-lasting internal armed conflict started when the “Sendero Luminoso / Shining Path” took up an armed rebellion against the State.

The Shining Path quickly gained a reputation for using extreme and systematic violence against the civilian population aimed at causing terror. During the 1990s, the newly elected Fujimori administration granted wide-reaching powers to the armed forces and brought about legislative measures to legitimize radical counter-terrorism measures. These led to a decrease in democratic control and prepared the ground for the occurrence of countless acts of torture, extrajudicial killings, forced disappearances, mass killings, inhumane and degrading treatment, sexual crimes and arbitrary imprisonment.

For years these crimes remained uninvestigated and, worse, they were virtually ignored not only by the Peruvian authorities but also by the majority of Peruvians. At the time, my mother worked as a prosecutor, and I grew up with daily stories of the horror and the violence. Many of those trying to uncover the truth and to fight impunity lived in fear of retaliation and intimidation, and her work and dedication taught me about courage and bravery.

On the basis of these childhood impressions I decided to study law. My professor of Public International Law at the Universidad Católica de Santa María in Arequipa was none other than my father. He instilled in me a firm belief in the strength of the international legal system - despite the collapse of the ethical foundations of Peru’s judicial system during the 80s and 90s, Peruvian victims looking for redress and justice could still resort to the Inter-American Court of Human Rights. And many did.

In August 2003, the Truth and Reconciliation Commission for Peru published its final report, putting the number of people murdered and disappeared during those years at approximately 69,000. In its report, the Commission made several recommendations, all of which were directed towards achieving reconciliation. What struck me the most was the Commission’s insistence that all of its recommendations had one major prerequisite: the establishment of the truth and the accomplishment of justice. Or, in the Commission’s words: If the establishment of the truth is a pre-condition for reconciliation, justice is at the same time a pre-condition for establishing the truth and a consequence of it.

This principle filters through the Report in its entirety and has guided me in my career ambitions ever since. When I started learning about the International Criminal Court (ICC), I found this precise principle mirrored in its founding document - the Rome Statute creates a concrete system of justice aimed at ending impunity, which respects the principles of due process and the rights of the accused, as well as upholds the interests of the victims. I cannot think of a better way to ensure that a judicial system ultimately contributes to the achievement of justice, truth-finding and reconciliation.

Summing up, I suppose one might think that my path to the field of international criminal justice and to the ICC was predetermined from the start. Having grown up in a place where the foundations of society were so heavily shaken by brutal violence and blatant disregard for the most basic human rights, it felt like a natural choice.

How does the Legal Advisory Section fit into the overall strategy and function of the Office of the Prosecutor?

The Office of the Prosecutor (OTP) is composed of the Immediate Office of the Prosecutor; three operational divisions, namely the Prosecution Division, the Investigation Division and the Jurisdiction, Complementarity and Cooperation Division; as well as two support sections, the Services Section and the Legal Advisory Section (LAS). LAS contributes to the work of the OTP by providing legal advice and assistance, legal training, and advisory services of non-legal nature upon request.

In order to explain more concretely the role that LAS plays within the OTP - and for those who are not so familiar with the work of the Court - I need to make a brief reference to the proceedings currently pending before the ICC. At the moment, there are four “situations” before the Court: the Democratic Republic of the Congo, Northern Uganda, Central African Republic and Darfur in the Sudan. For each situation, the Prosecutor has requested arrest warrants or summons to appear against people allegedly responsible for committing war crimes, crimes against humanity and, as in the “case” against President Omar Al Bashir of Sudan, genocide. Obviously, cases are at different stages of the judicial process, but the Office has designated different joint teams to deal with each situation and case, which consist of situation analysts, investigators, trial lawyers, and so on. LAS may play a role in each of these situations and cases upon a request for legal advice by preparing memoranda and briefing notes or simply by exchanging views orally. A typical question we often get, for example, is to set out the application or interpretation of certain provisions of the Rome Statute that are of relevance to the respective proceedings.

LAS plays a more strategic role within the OTP by coordinating the preparation of internal guidelines. Some examples of these are the Regulations of the OTP, published on 23 April 2009; an Operations Manual based on such regulations, which is currently being prepared and will bring together the Office’s good practices; and a series of policy papers providing staff members with clear guidelines on their work responsibilities on key issues.

LAS also provides legal training for Court staff members. We invite renowned scholars and practitioners versed in international criminal law, humanitarian law, human rights law and other relevant areas to give training in the form of Guest Lectures. To date, we have had the pleasure of listening to the lectures of outstanding academics and practitioners such as; Prof. Allain Pellet, who gave a lecture on State Responsibility and individual criminal responsibility under International Law; Prof. Bertrand Ramcharam, who spoke about the contemporary challenges that the system of international protection of human rights faces; Stephen Rapp, Prosecutor of the Special Court for Sierra Leone, who shared with us a lecture on the notion of “direct and public incitement to commit genocide” and Major General Patrick C. Cammaert who shared with us his experience serving as a General Officer Commanding the Eastern Division of the UN mission in the DRC (MONUC) from 2005 to 2007, amongst others.

Finally, LAS participates in the development of the ICC “Legal Tools” on behalf of the OTP and manages the OTP legal-academic network.

What does a “day in the life” of the ICC look like for you working at the ICC and what are some of the daily challenges you face?

It is difficult to describe a “typical day” in the life of the Court because no day at the ICC is the same. Obviously, some days are busier than others, but at the Court we have days that can be especially exciting. For example, I remember vividly the day when the Prosecutor announced his application for the arrest warrant against Omar Al Bashir - this was the first time that an acting Head of State was being charged by the ICC Prosecutor and, more so, the first time an acting Head of State was accused of genocide. I could not help but feel that history was being written right there, before our eyes.

An interesting part of my work, and for anybody working at the Court, is to follow the ongoing trials. In July 2009, the Prosecution wrapped up its case in the trial against Thomas Lubanga, a former militia leader from the Democratic Republic of the Congo. He is being prosecuted for conscripting, enlisting, and using child soldiers.  During the hearings of this case, I was asked to monitor the testimonies of witnesses in order to search for oral decisions made by the judges in the course of the trial to assist the prosecution teams in the management and trial preparation for other cases. However, the legal issues aside, attempting to bring some justice to the lives of thousands of victims of horrific crimes, brings a human side to our work and are a constant reminder of the reason for choosing to work for the ICC.

The challenges that I face at my work for OTP are often related to tasks or projects that involve spending a substantial part of my days studying and that require keeping my mind in an analytical mode all the time.  For instance, part of the work of LAS is to give presentations to visitors about the work and functions of the OTP. The audiences can vary greatly, from “lay” members of the public or undergraduate students to well-informed military personnel and postgraduate students of international criminal law and their professors. I find myself in a situation where I have to be well prepared on many details not only of the current work of the Court but also of the negotiation process of the Rome Statute and the functioning of the OTP. It is a real challenge to anticipate all possible questions related to the work of the OTP. By spending substantial parts of my days studying and discussing key issues with my colleagues in LAS, I managed to give my first presentation after one month of starting my job at the Court.

Since joining the ICC, what has most surprised you about your work?

When I started working for the ICC, I was surprised to see that, despite the OTP staff members’ different legal backgrounds, they show little differences in style and methodology when dealing with questions of substantive and procedural law, by focusing above all on the provisions of the Rome Statute and Rules of Procedure and Evidence.

Another aspect that surprised me was the vast representation and the role played by women from developing countries, especially those coming from societies where women still enjoy little equality and where pursuing a demanding career is often discouraged. I am grateful for the opportunity to be working with high achieving women, who I admire and respect, not only because of the important work that they perform at the Court but also because many of them are pursuing postgraduate studies, publishing ground breaking articles and are in a constant search for professional self improvement (whilst many of them are mothers at the same time).

How has your time in the ICC shaped your views on International Criminal Justice, and what key challenges do you foresee moving forward?

My understanding of international criminal justice has become much more solid since I started working at the ICC. As a young law student, I learned about the ad hoc Tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY) created by the UN Security Council, both with limited mandates in terms of time and territory. As an intern working for the ICTY OTP, I had the opportunity to learn and understand the procedural system of these tribunals and became acquainted with the vast jurisprudence that they have developed in less than two decades. However, the ICTY and the ICTR were created on an ad hoc basis after a political decision to address the shortcomings of the international community. Genocide, war crimes and crimes against humanity had already occurred in Rwanda and the former Yugoslavia.

At the ICC, by contrast, every day I see how a new and permanent system of international criminal justice is being developed and applied. The legal system established by the Rome Statute includes elements of the adversarial and inquisitorial legal traditions.   This procedure creates a unique model to prosecute and adjudicate on the commission of the crimes, identified in the Rome Statute, while applying at all times the principles of due process and equality of arms, with respect to the rights of the accused and the victims.  It also allows victims a platform to tell their story and to express their views and concerns in front of the judges. This mixture of legal traditions and the recent creation of the ICC legal system means that there are many questions concerning particular provisions of the Rome Statute that need to be answered in practice.

However, the ICC still faces many challenges. Cooperation from States as well as from multilateral organizations is needed, particularly when it comes to key challenges such as the conduct of investigations within a context of ongoing conflict and the execution of arrest warrants. Cooperation and active participation from the principal global actors are critical. They must create conditions conducive to the implementation of the decisions of the Court and thereby, put an end to a culture of impunity, which will ultimately lead to the deterrence and prevention of these crimes in the future.