Coalition for the International Criminal Court (CICC) Questionnaire for ICC Judicial Candidates December 2014 Elections

Transcription

1 (CICC) December 2014 Elections Please reply to some or all of the following questions as comprehensively or concisely as you wish. To fill in the document please click in the grey box which will then expand as it is filled in. Name: Chang-ho CHUNG Nationality: Republic of Korea Nominating State: Republic of Korea Legal Background (mark as appropriate): List A List B Background: 1. Why do you wish to be elected a judge of the ICC? After a rewarding career as a judge in the Republic of Korea, I have served as a United Nations international Judge at one of the UN-backed international tribunals, the Extraordinary Chambers in the Courts of Cambodia (ECCC), for the past three years. I have always done my best as a judge to produce impartial outcomes in a professional and efficient manner. I am confident that, if elected, my extensive and practical experience as a judge at both national and international courts will enable me to make a meaningful contribution to the judicial independence, jurisprudence, and procedural fairness and efficiency of the ICC. It has been a great privilege to participate in the historic cases of the ECCC, the only international tribunal in Asia, as a professional judge of an Asian country. At the ECCC, I have always felt a great responsibility to bring justice for the victims of serious crimes. At the same time, I have come to realize once again the vast potential for development in the Asia-Pacific region in the areas of the rule of law and human rights. I firmly believe that an integrated and well-balanced development of the rule of law and human rights can be accomplished in this region. If elected, I will do my best, with my substantial experience and network in Asia-Pacific region, to promote the development of the rule of law and human rights in this region and beyond. 2. What do you believe are some of the major challenges currently facing the Court? What do you believe will be some of the major challenges in the coming years?

2 (CICC) I believe that the major challenges that the ICC is currently facing are (i) the lack of universality of the Rome Statute, and (ii) the non-fulfillment of obligations to cooperate with the ICC. I believe that working out how to resolve these issues will be the major challenge for the ICC in the coming years. The ICC needs to meet with non-states Parties to help them gain a clear understanding of the status and authority of the ICC, especially its jurisdiction, and to encourage them to embrace the rule of law and pursue the end of impunity through the ICC. The ICC also needs to develop practices to satisfy the demands of States concerned and to help them have a sense of involvement in its proceedings so that they will more willingly fulfill their obligations to cooperate with the ICC. Furthermore, the ICC needs to strengthen the domestic jurisdictions of States concerned by collecting and exchanging information of their capacity-needs. Nomination Process: 3. What are the qualifications required in the State of which you are a national for appointment to the highest judicial offices? Please explain how you meet these qualifications. Article 42(1) of the Court Organization Act of the Republic of Korea, as last amended on 28 May 2013 (Act No ), provides that "Justices of the Supreme Court shall be appointed from among those who are forty five years of age or over, and have been in any of the following offices for not less than 20 years: (i) judge, public prosecutor or lawyer, (ii) a person who is qualified as a lawyer and has been engaged in legal affairs at a government agency, local government or public institution governed by Article 4 of the Act on the Management of Public Institutions, or other law-related positions, and (iii) a person who is qualified as a lawyer and has been an assistant professor of law or higher at an authorized college or university. From 1993, I worked in various areas as a judge at a number of Korean courts. Since 2011, I have been working as a UN International Judge at the ECCC. As such, I have gained over 20 years of judicial experience, and I am sufficiently qualified for the post of Justice of the Supreme Court of Korea in accordance with the Court Organization Act. The Republic of Korea's nomination process followed the procedure for nominations of candidates to the International Court of Justice in accordance with Article 36.4(a)(ii) of the Rome Statute. The Korean National Group at the Permanent Court of Arbitration considered Article 42(1) of the Court Organization Act and the qualifications of the candidates, and informed the Korean Government that it had, after careful deliberation, decided to nominate me as a candidate for election as a Judge of the ICC. 4. Have you provided the statement required by article 36(4)(a) of the Rome Statute and by the nomination and election procedure adopted by the Assembly of States Parties? If not, please provide an explanation for this omission. Yes, the Government of the Republic of Korea has provided the statement. It is posted on the ICC website. Legal System: 5. Which legal system does your country belong to? Please describe any knowledge or experience you have working in other legal systems. The Republic of Korea belongs to the civil law legal system. Like other civil law states, statutory law is the primary source of law in Korea, and Korean judges can exercise more authority over

3 (CICC) case management. As a judge in the Republic of Korea from 1993, I was involved with more than 10,000 cases, including thousands of criminal cases. In 2001, the London School of Economics and Political Science (LSE) invited me to be a research scholar, and in 2005, the University of Hong Kong (HKU) also invited me as a research scholar. Through these opportunities I was able to study the criminal and civil procedure of the common law legal system in depth. This experience also provided me with knowledge to write a "Booklet on the Civil and Criminal Procedure Rules of the England and Wales for New Korean Lawyers" and a "Booklet on the Civil and Criminal Rules of the HKSAR," as well as lecture at the Korean Judicial Research and Training Institute about the UK and HKSAR legal systems. In 2011, I was appointed as a UN International Judge of the ECCC and I have been working there since then. The judicial procedure of the ECCC is a mixture of the common law and civil law legal systems. Dealing with many cases at the ECCC, I have been able to broaden my knowledge and experience of the common law legal system and also increase my ability to apply the combined criminal procedure of civil law and common law legal systems in a proper and efficient manner. Language Abilities: 6. The Rome Statute requires every candidate to have excellent knowledge of and be fluent in English or French. a) What is your native language? Korean b) What is your knowledge and fluency in English? If it is not your native language, please give an example of your experience working in English. I have a good command of English based on long period of my learning and working in English. I also broadened my knowledge of English related to international law and legal terms and expressions in both the civil law and common law legal systems through coursework for my Master's Degree in international law and my experience as a research scholar in both London and Hong Kong. In 2008, I was appointed as a delegate of the Republic of Korea to a number of organizations involved with international law, such as the UN Commission on International Trade Law (UNCITRAL), the International Institute for the Unification of Private Law (UNIDROIT) and the Hague Conference on Private International Law (HCCH). As a Korean delegate, I actively participated in English in the meetings of such organizations and contributed to the adoption of many international legal texts. In 2011, I was appointed as a UN International Judge of the ECCC, and since then I have been working in English for the ECCC. I have become very accustomed to using English as a working language and to the special legal terminology used in international criminal courts. c) What is your knowledge and fluency in French? If it is not your native language, please give an example of your experience working in French?

4 (CICC) I studied French as my second foreign language for almost nine years at high school and university. That helped me gain sufficient knowledge of French grammar and vocabulary and also be able to read French legal texts. Unfortunately, I have never had any experience working in French because I have always chosen English as my working language. [Le français est ma deuxième langue étrangère. J'ai fait mes études de français pendant presque neuf années, à l'école secondaire et à l'université. Ces années d'études m'ont permis d'apprendre la grammaire et le vocabulaire ainsi qu'à savoir lire des textes juridiques français. Mais malheureusement je n'ai jamais eu l'occasion de travailler en français parce que j'ai toujours utilisé l'anglais comme langue de travail.] List A or B Criteria: 7. Your response to this question will depend on whether you were nominated as a List A candidate or a List B candidate. Since you may have the competence and experience to qualify for both lists, please feel free to answer both parts of this question to give the reader a more complete view of your background and experience. a) For List A candidates: - Briefly describe your qualifications as a List A candidate As a judge at both national and international courts, I have had major case experience covering a great deal of national and international criminal law and procedure, opportunities to understand the jurisprudence of international criminal tribunals including the ICC, and chances to apply both the civil law and common law legal systems. My varied and extensive case experience helps me fulfill an essential requirement for judges of the ICC, enabling me to establish competence in criminal law and procedure and the necessary relevant experience as a judge in criminal proceedings. - How would you describe your competence in criminal law and procedure? My extensive and practical experience as a judge in the Republic of Korea has helped me fully understand and find answers to issues related to criminal law and procedure in a very productive manner. I am sure that this practical experience will enable me to meet the demands of ICC proceedings, especially in complex and timeintensive cases. The ECCC is composed of both UN international judges and Cambodian national judges, and the appointment of the international judges is made not by election but by the UN's direct nomination. Therefore, my appointment as a judge of the ECCC clearly shows that the UN recognized that I had the practical experience and expertise as a professional judge to deal with international crimes at an international court. I believe that, having dealt with numerous pivotal cases and difficult situations at the ECCC over the past three years, I have demonstrated that the UN made the right choice. - How would you describe your experience as judge, prosecutor, counsel, or in another similar capacity, in criminal proceedings? As a judge in the Republic of Korea, I gained experience with more than 10,000 cases, including thousands of criminal cases. My criminal case experience at national courts covered all kinds of criminal law and procedure issues, such as judgments at the first or second instance courts, judgments on election-related criminal cases, issuances of arrest or detention warrants, cases involving violence against women and children, and decisions regarding procedural issues at the first or second instance courts.

5 (CICC) As an international judge in the Pre-Trial Chamber of the ECCC, I have dealt with many cases related to international criminal law and procedure, considering the relevant jurisprudence and rules of many international tribunals including the ICC and the European Court of Human Rights (ECtHR). The jurisdiction of the Pre-Trial Chamber of the ECCC covers appeals from the charged persons in respect of their rights based upon both the Internal Rules of the ECCC and the provisions of the International Covenant on Civil and Political Rights (ICCPR), appeals related to charged persons' or civil parties' investigative rights, orders of arrest or detention, disagreements between Co-Prosecutors or Co-Investigating Judges, appeals related to the admissibility of civil party applications, appeals concerning administrative decisions of the court, and appeals related to Closing Orders (be these indictments or dismissal orders). b) For List B candidates: - Briefly describe your qualifications as a list B candidate I am not a List B candidate but I would like to describe my competence and experience in international humanitarian law and international human rights law. As mentioned above, the ECCC handles serious crimes such as crimes against humanity and genocide. As an ECCC judge, I deal with cases requiring the application of international humanitarian law and human rights law on a daily basis. - How would you describe your competence in relevant areas of international law, such as international humanitarian law and international human rights law? Besides my working experience at the ECCC, during coursework for my Master's degree in international law, I studied international legal norms including international humanitarian law and international human rights law. - How would you describe your professional legal experience that is of relevance to the judicial work of the Court? If elected, my knowledge and working experience in the areas of international humanitarian law and human rights law will be helpful when working with other judges appointed from List B. Other Expertise and Experience: 8. Please describe the aspects of your career, experience or expertise outside your professional competence that you consider especially relevant to the work of an ICC judge. I believe that the ICC judges need to have an extensive understanding of and experience with both the civil law and common law legal systems. My experience as a research scholar at the LSE in 2001 and at the HKU in 2005 provided me with an excellent opportunity to study the common law legal system. My experience as a Korean delegate at various international conferences, such as those of UNCITRAL, UNIDROIT and HCCH, provided me with a practical understanding of how to harmonize the civil law and the common law legal systems, as well as public international law and private international law. In addition to my duties as judge in the criminal proceedings of the ECCC, I am a member of the ECCC Judicial Administration Committee and the ECCC Rules and Procedure Committee. I believe

6 (CICC) that my experience on these committees, working to improve the operation, management and efficiency of the court, can also significantly contribute to the efficient operation of the ICC. Furthermore, I fully acknowledge the importance of outreach activities to share the value of international criminal justice with others and to encourage future generations to pay more attention to the improvement of human rights. Whenever I have the opportunity, I try to participate in such worthy activities and to interact with the participants. I hope that my understanding of and positive attitude towards such outreach activities can contribute to the expansion of the universality of the ICC. 9. Please provide examples of your legal expertise in other relevant areas such as the crimes over which the Court has jurisdiction; the management of complex criminal and mass crimes cases; or the disclosure of evidence. As a judge in the Republic of Korea and at the ECCC, I dealt with many complex cases with a substantial amount of evidence submitted by parties. This experience has enabled me to become proficient at extracting the most important issues from complex cases, classifying evidence according to its relevance, and finding the proper rules and jurisprudence applicable to those issues. Experience (and perspective) related to gender crimes and crimes of sexual violence: 10. Historically, many of the grave abuses suffered by women in situations of armed conflict have been marginalized or overlooked. Please describe any experience you may have in dealing with crimes of sexual and/or gender based violence and where you have applied a gender perspective, i.e. inquired into the ways in which men and women were differently impacted. I believe that the issue of marginalization of victims such as women and children, who are often more vulnerable and face specific types of crimes in times of armed conflict, due to their social or physical situations, should be addressed in a proper manner throughout the whole process of the ICC. Whenever I dealt with crimes of sexual violence as a judge in the Republic of Korea, I always did my best to prevent any retraumatization of female victims by assuring them that they could provide testimony free of intimidation or fear. The criminal procedure of the Republic of Korea, like international tribunals, provides a procedural and structural framework and protective measures for the protection of victims who are women and children, such as expunging their names, use of pseudonyms, support officer's sitting beside the witnesses in the courtroom, in camera proceedings, and use of audio-video technology or closed-circuit television. I took full advantage of these protective measures in dealing with sexual violence cases while also ensuring a fair trial and protecting the rights of the accused. Such experience at national courts has led me to develop an interest in the protective measures at international criminal tribunals, particularly since my appointment as a judge of the ECCC. I recently gave a lecture entitled "Protection of Women's and Children's Rights through the Established International Criminal Procedure and through the Establishment of the Asian Court of Human Rights". I am determined to continue furthering my knowledge and experience in this field. Victims related work: 11. Victims have a recognized right to participate in ICC proceedings and to apply for reparations under Article 75 of the Rome Statute. Please describe any experience that you have, which would be relevant to these

7 (CICC) provisions, particularly any experience you may have that would make you particularly sensitive to/have understanding of the participation of victims in the courtroom. I am convinced that victims can get restitution psychologically not only through the court's judgment but also through their participation in the criminal proceedings. Since the victims' participation itself is part of the realization of justice, it is important to secure their direct participation, to provide appropriate legal assistance and to guarantee their rights in the proceedings. At the ECCC, I have become increasingly aware of the important role and contributions of civil society, as well as NGOs, with respect to the victims' role and the protection of their rights in the criminal proceedings. Both the ICC and the ECCC allow victims to apply for reparations. Moreover, the ICC is the first international court to allow victims to participate in court proceedings, and the ECCC is the first international court to allow victims to participate as full parties in the proceedings. At the ECCC, if victims are admitted as civil parties during the pre-trial stage by the Co-Investigating Judges or by the Pre-Trial Chamber, they can join the whole pre-trial and trial process. Lawyers for civil parties even have the right to question witnesses at trial, like prosecutors and defence lawyers. As a judge of the Pre-Trial Chamber of the ECCC, I have a clear understanding of the victims' participation in the proceedings and their application for reparations. I have also been involved with many victim-related cases, such as appeals related to the admissibility of civil party applications, appeals related to civil parties' investigative rights and appeals related to protective measures for civil parties. Furthermore, the issue of reparations should be considered from the perspective of the whole systemic structure of the ICC. To achieve justice for the victims, based on Articles 75 and 79 of the Rome Statute, the ICC has established the Trust Fund for Victims. The Court may also order money collected through fines or forfeiture to be transferred to the Turst Fund in accordance with Articles 77 and 79. I believe that the positive participation of and cooperation with States Parties needs to be strengthened to facilitate the utilization of the Trust Fund and to secure the enforcement of fines and forfeiture. 12. How would you address the need for a balance between victims participation with the rights of the accused to due process and a fair and impartial trial? Do you have any relevant experience in dealing with this issue? The proceedings of the ICC should be fair and adversarial, should preserve a balance between the rights of the parties, and should be concluded within a reasonable time. For this purpose, based on my experience at the ECCC, I believe that victims with the same interests should comprise a single, consolidated group and such a group should be represented by a legal representative. And the views and concerns presented by the victims in court proceedings need to be limited to supporting the prosecution. Human rights and Humanitarian Law experience 13. Do you have any experience in working with or within international human rights bodies or courts or have you served on the staff or board of directors of human rights or international humanitarian law organizations? Please briefly describe. No. Judges of the Republic of Korea, in accordance with the code of ethics, have the obligation to maintain political neutrality as civil servants, and are only permitted to join educational, religious or cultural entities which do not in any way interfere with the execution of their official duties.

8 (CICC) However, after starting work at the ECCC, I have attended many conferences, seminars and lectures organized or attended by such international human rights or humanitarian law bodies. 14. Have you ever referred to or applied any specific provisions of international human rights or international humanitarian law treaties within any judicial decision that you may have issued within the context of your judicial activity or legal experience? The Agreement between the UN and the Royal Government of Cambodia for the establishment of the ECCC provides that the ECCC shall exercise its jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights (ICCPR). Therefore, I have referred to Articles 14 and 15 of the ICCPR on many occasions at the ECCC. As Korea takes the monism approach to international treaties, most international human rights treaties already have the same legal effect as Korean domestic law. The spirit and principles of such international legal norms are also embodied in Korean domestic law. Due to this legal environment, fundamental human rights provisions are applied directly or indirectly by Korean judges whenever relevant. Thanks to my experience in such cases, I have developed a deep understanding of how to practically apply these norms, which I have utilized in cases at the ECCC as well. Implementation of the Rome Statute and ICL 15. During the course of your judicial activity, if any, have you ever applied the provisions of the Rome Statute directly or through the equivalent national legislation that incorporates Rome Statute offences and procedure? Or have you ever referred to or applied the jurisprudence of the ICC, ad hoc; or special tribunals? If so please describe the context in which you did. The judges of the ECCC are supposed to seek guidance regarding the court procedure in procedural rules established at the international level. Accordingly, I have applied the provisions of the Rome Statute and also referred to the jurisprudence of the ICC and other international tribunals in many instances, such as the charged person's right to a fair trial, access to case files, participation in investigations, integrity of investigations, grounds for constructive refusal, conflicts of interest of counsel, the concept of joint criminal enterprise (JCE), and jurisdictional issues. Other matters: 16. Have you ever resigned from a position as a member of the bar of any country or been disciplined or censured by any bar association of which you may have been a member? If yes, please describe the circumstances. No. 17. It is expected that a judge shall not, by words or conduct, manifest or appear to condone bias or prejudice, including, but not limited to, bias or prejudice based upon age, race, creed, color, gender, sexual orientation, religion, national origin, disability, marital status, socioeconomic status, alienage or citizenship status. a) Do you disagree or have difficulty with this expectation? I fully agree and have no difficulty at all with this expectation. It is an essential and fundamental expectation for a judge at a national or international court.

9 (CICC) b) Have you ever been found by a governmental, legal or professional body to have discriminated against or harassed an individual on these grounds. If yes, please describe the circumstances. No. 18. Article 40 of the Rome Statute requires judges to be independent in the performance of their functions. Members of the CICC and governments are concerned about the difficulties a judge may experience in independently interpreting articles of the Rome Statute on which his or her government has expressed an opinion. a) Do you expect to have any difficulties in your taking a position independent of, and possibly contrary to, your government? No. My career as professional judge throughout the years at national courts and currently at the ECCC show that I have consistently adhered to this essential virtue required to be an impartial judge. b) Article 41 requires a judge s recusal in any case in which his or her impartiality might be doubted on any ground. Do you feel you could participate in a judicial decision involving a matter in which your government has an interest, such as whether an investigation by your government on a matter of which the ICC was seized was genuine? No. 19. The Rome Statute requires that judges elected to the Court be available from the commencement of their terms, to serve a non-renewable nine-year term, and possibly to remain in office to complete any trials or appeals. A judge is expected to handle legal matters for at least seven hours per day, five days per week. a) Do you expect to be able to serve at the commencement and for the duration of your term, if elected? Yes. I am entirely confident that I would be able to serve the duration of my appointment with dedication and sincerity. b) Do you expect to be able to perform the judicial tasks described above on your own or with reasonable accommodation? If no, please describe the circumstances. Yes. I hope to have the privilege to contribute the realization of international criminal justice at the ICC and the further growth of an effective and impartial ICC. 20. If there are any other points/issues you wish to bring to the attention of the Coalition in this questionnaire, please feel free to address them here. None. Thank you.