Christine van den Wyngaert
Judge Christine van den Wyngaert has been appointed as a judge at the Kosovo Specialist Chambers. She previously served as Judge with the International Criminal Court between 2009 and 2018, the International Criminal Tribunal for the former Yugoslavia between 2003 and 2009, and as an ad hoc Judge at the International Court of Justice between 2000 and 2002. Prior to this, between 1991 and 1998, she was the vice chair of the Criminal Procedure Reform Commission in Belgium (Commission Franchimont). She has also served as an expert for the European Union in various criminal law projects. Between 1985 and 2005, she held a chair as Professor at the University of Antwerp. She was a visiting fellow at the Lauterpacht Centre (University of Cambridge) and, since 2001, an honorary Professor at the University of Stellenbosch.
Judge van den Wyngaert holds a law degree from Brussels University (Belgium), and obtained her PhD in International Criminal Law from the same university. She received five honorary doctorates - Uppsala (Sweden), Brussels, Case Western Reserve (US), Maastricht and the University of Stellenbosch (South Africa). She has published extensively in the field of criminal law, criminal procedure, comparative criminal law and international criminal law. On 8 July 2013, Judge van den Wyngaert was ennobled by King Albert II of Belgium as a baroness for her services as an academic and as an international judge.
Judge van den Wyngaert was profiled for ATLAS by Raluca Racasan, an Associate Legal Officer in the Chambers of the International Criminal Court. You can read more about Raluca's work at the end of this profile.
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What pulled you towards international law as a career? And what were your first steps?
One could probably say that the red thread throughout my career was my interest in human rights, moving from the ‘shield’ of human rights – their protection – to the ‘sword’ of human rights – punishing those who violate them.
My international law career started somewhat by accident: my first and main passion was music and what I wanted to do was to become a singer, which I did, releasing records in 1967 and 1971. This was during the time of Woodstock – where I was not allowed to go, being just 17 – and of protests against racial discrimination and the war in Vietnam, all of which got me very engaged with human rights.
I then chose to study law because I was told that this was the easiest thing to do and that I could combine it with my musical career aspirations. In the beginning I hated it. I was so bored…I can’t even express how much I disliked it! However, this was until I reached my third year of law school and I had a course on criminal law where I chose to write a paper about the Nuremberg trials. That really got me hooked!
I then finished university maxima cum laude– surprisingly, as I was the first person to attend university in my family – which is when professors start being interested in you. One professor managed to spark my interest and I agreed to do a PhD in international criminal law, provided that I could continue my studies at the Royal Conservatory of Music in Brussels.
I was interested in international criminal law because it was something that did not exist at that time. It needed to be created from scratch. I was not taken very seriously by colleagues when I told them about my passion. They said was not a serious branch of the law, and not even a discipline. But that was what fascinated me.
I then became a member of the International Association of Penal Law and through its Bassiouni Institute in Siracusa I met a number of people who were also interested in international criminal law and who later on also became known names in the field – such as Alphons Orie, Bert Swart, Wolfgang Schomburg, Stephan Trechsel, Albin Eser, Frank Hopfl and Sharon Williams. At that time we dreamt of an international criminal court but we didn’t think that we would see it come into existence within our respective lifetimes. But then all of a sudden the ICTY was created, and after that the ICC, and to make it even more fantastic I was a judge in both courts, together with some of my old friends with whom I had been brainstorming in Siracusa.
What have been the high points of your career thus far?
One thing which is not something that appears on my CV relates to the fact that, as an academic, I became an expert in international criminal law and I would sometimes be contacted by people who were working in private practice, in human rights litigation, in order to assist them. One day I got a phone call from a very well-known barrister in London who told me that the ‘General’ wanted to have me on board. Can you guess what ‘General’ in London needed advice on extradition, specifically the political offence exception to extradition, which had been the subject of my doctoral thesis? Pinochet!
It was a great feeling for me to be able to say no to this offer. Regardless of how much money they could give me, that’s where it stopped for me. That was definitely a high point.
My first experience as an international judge was then to sit as an ad hocjudge on the Yerodia case at the ICJ. It was such a thrill to be called to do that! The case dealt with topics that I had worked in academically, universal jurisdiction and immunities, and just being there was so exciting! In deliberations, all the judges speak – in turn, starting with the youngest – which meant that I had to speak first. After that, it also turned out that I was going to dissent, which is bold thing to do, especially in such a context. It was just wonderful.
Starting at the ICTY in 2003 was another high point. It was a sheer pleasure to see this dream come true: an international tribunal having come into existence. Also, it was a great honour to be called upon to be there and to take part in the elaboration of the very first jurisprudence. The collegiality and the social relations at the ICTY also made the experience truly remarkable, as did finding my old friends there: Judge Orie, Judge Schomburg, Judge Swart, Judge Williams.
My experience at the ICC between 2009-2018 was very different. My mandate there has required me to show some ‘legal guts’ to go against the stream and hopefully this is something that will help the Court get on its feet. During my time there, I did what I felt that I had to do and what my judicial conscience dictated me. I dissented in a number of cases and I also spoke out in relation to the current model of victim participation.
What are some of the challenges that you’ve faced and how have you tackled them?
One of the main challenges of being an international judge is very clear – you are applying a body of the law that is very new and therefore in relation to which the jurisprudence is very limited. Furthermore, you are working with colleagues from different professional backgrounds, who may have a very different judicial philosophies and very different approaches to the law and its application, as opposed to national judges, who share the same legal background. In this respect, it was Judge Orie who said that during his time on the Hoge Raad (Supreme Court of the Netherlands), whenever they were faced with a difficult legal question, the judges on the bench would be in agreement for, let’s say, 90% and the discussion would revolve around the remaining 10%. At the ICTY, however, and international courts in general, it is often the other way around. There is often no jurisprudence to rely on: you are faced with interpreting a text for the first time, and this is particularly difficult – even more so for at ICC than the ICTY – because there are certain ‘constructive ambiguities’ in the Statute in relation to issues upon which the states could not agree and which were left for the judges to sort out. This is very difficult.
I have personally been faced with a few difficult moments where I found myself ‘damned if I did’ and are ‘damned if didn’t’. Also, as far as the ICC is concerned, many different stakeholders expect very different things from the Court, which the Court cannot always deliver.
Also, there are many situations where there is more than one correct answer to a particular legal question. As a judge, you then have to decide which answer you choose, and also how you choose that answer. One can very well see situations at the Court where you have different judges pulling in very different directions.
In relation to being a woman and a judge, I personally don’t believe that there is really any gendered dimension to the profession. Throughout my career as both an academic and a judge I have constantly been doing ‘my own thing’, which I think is not something gendered, but rather my own psychology.
Do you have any advice for those who are embarking on a career in international law?
Keep your enthusiasm. Don’t give it up.You will need it now more than at any other point in time with all the anti-globalization tendencies going on. For some time we all thought that we were part of a linear evolution, going towards a rosy future where everything was going to be better. But evolution is not linear. There are always ups and downs and we mustn’t give up.
For example, there is so much criticism against the ICC going on at the moment, but none of it is abnormal. We, as an international community, are currently trying out a number of things that haven’t been done before, such as victim participation in international criminal trials. The Court just needs to make sure that it doesn’t make promises that it cannot deliver and become truly functional.
Taking the Strasbourg European Court of Human Rights as an example, there was also a lot of criticism against it, but the court managed to re-calibrate and is now much more functional. The same can be done with the ICC. This is why we need young professionals who can carry this mission forward.
Keep developing all areas of international law. International criminal law is not the only area of international law currently on a ‘down’. The UN generally, the World Trade Organization, the International Tribunal for the Law of the Sea are all facing their own issues. Populists in a number of countries want to break down the organizational post-1945 legal order and, in this context, international institutions need to make sure that they function properly so as not to attract criticism. There is a lot of work to be done in order to show the importance of these institutions and to make sure that they keep doing their work and there are many professions where young professionals can serve the cause of international justice and promote cosmopolitanism and common values. It is important to keep raising our voices and to show that we are here.
Raluca Racasan is an Associate Legal Officer in the Chambers of the International Criminal Court. Raluca holds a bachelor’s degree in law from the Babeş-Bolyai University in Cluj-Napoca, Romania, and an LL.M in Public International Law and an LL.M in European Law from Utrecht University, The Netherlands. Previously, she worked as a junior researcher at Utrecht University on a project on jurisdiction and global values and as an Assistant Legal Officer and, subsequently, as an Associate Legal Officer at the ICTY and interned in the Defence Office of the Special Tribunal for Lebanon as well as in the Terrorism Prevention Branch of the United Nations Office on Drugs and Crime. In her free time, alongside traveling, she assists as a bench member and memorial evaluator for public international law and international criminal law moot courts.