By Thomas Verfuss
At the invitation of the government of Poland, ICC judges held a retreat in the Eastern European country to discuss internal court matters. They also visited the former Nazi concentration camp of Auschwitz to pay their respects to the millions of victims of the Holocaust.
The run-up to the trip to Poland has not been without controversy. On the one hand, paying tribute to the victims of Auschwitz is an obvious thing for the ICC judges to do. Auschwitz is the most emblematic symbol of mass atrocities in Europe during the 20th century. In the course of the German occupation of Poland during the Second World War, the Nazis killed more than a million human beings there: Jews, “Gypsies” (or as they prefer to be called themselves: Romani and Sinti), political prisoners, homosexuals and many others. An estimated 90 per cent of those gassed or otherwise murdered was Jewish.
After the Second World War and the defeat of the Hitler regime, the surviving Nazi leaders were tried at the improvised military tribunal in Nuremberg. At the same time, in order to try and prevent similar atrocities in the future and to lay a sound basis for prosecutions, lawyers from all over the world worked on the Convention on the Prevention and Punishment of the Crime of Genocide, which was adopted by the General Assembly of the United Nations in 1948. The Genocide Convention foresees the possibility of an “international penal tribunal” to try those suspected of genocide. So there is a direct line from Auschwitz to the International Criminal Court, and the former Nazi concentration camp seems a logical place to visit for ICC judges in order to pay respects.
On the other hand, there is the current reality in Poland: the right-wing nationalist government in Warsaw curtails not only media freedom, but also the independence of public prosecution and the judiciary. The president of the Supreme Court of Poland, Małgorzata Gersdorf, issued a dramatic appeal to her colleagues in February: “For over a year I have been repeating that the courts are easily turned into a plaything in the hands of politicians,” Małgorzata Gersdorf told her colleagues in an open letter read out at a gathering of judges in Warsaw. “What was until now a threat is becoming a reality.” (The Guardian, 26 February 2017) Gersdorf has urged her fellow judges to risk their own positions in the fight against government proposals jeopardising judicial independence.
“There is no fight without victims, and among them may be counted some of us present here,” said Gersdorf’s letter to her fellow judges. “To win, you must be prepared even for disciplinary tribunals, to be removed from office, for anything. You must show that we are in opposition to the pushing of a democratic state into oblivion.” (quoted from The Guardian)
Given this situation, one ICC judge told Journalists for Justice that he felt that as a matter of solidarity with his Polish colleagues he could not accept the invitation of the current Polish government. He was not the only ICC judge to have similar thoughts and feelings. On the other hand, judges did not want to embarrass their Polish colleague, Piotr Hofmański, who, as one judge puts it, “was in a difficult position”.
Some judges said: no photos with politicians and government officials, and ICC president Silvia Fernández should seize the opportunity to speak about the importance of an independent judiciary at a formal dinner. “This is how we prevented the cancellation of the trip,” one judge puts it. In the end, all but three of the judges took part in the travel to Poland and Auschwitz. One of them had a prior personal engagement, anyway.
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