Illustration by James Ferguson of Sang-Hyun Song
© James Ferguson

On a sunny day, the view from the Penthouse restaurant on the 42nd floor of The Hague Tower stretches to the North Sea. But this is late February in the Low Countries. The tower stands enveloped in mist, a fitting metaphor for the International Criminal Court, whose South Korean president, Sang-Hyun Song, is joining me for lunch.

Established in 2002, after the genocide in Rwanda and ethnic cleansing in former Yugoslavia, the ICC has lofty ambitions: to end impunity by holding countries and their leaders accountable under international law for heinous crimes. The reality is more prosaic: the court is a young, fragile institution in a Hobbesian world where might usually trumps right.

There are many questions I wish to explore with Song. How can illiterate, traumatised child soldiers from Africa be expected to testify against their former commanders in a foreign court thousands of miles from home? Should we take the ICC seriously when China, Russia and the US refuse to sign up? And how about the ICC’s record over the past 13 years, which shows the people put on trial (and the two convictions) have all been black men?

Song, 73, is said to be super-smart but bland and sometimes ineffectual. After a long career as a law professor in Seoul, he became one of the ICC’s first judges and was appointed president in 2009. Those who know him say his weakness derives from his office — the ICC has a budget of more than €100m but no powers of arrest, no police force, no intelligence gathering and must rely on the goodwill of member states; in fact, they say, Song is courageous and generous, a philanthropist who co-founded a legal aid centre for women in South Korea.

The president arrives on time at 12.30pm, a slender man with straight black hair streaked with grey. He is wearing a dark suit with a pale blue shirt and a diamond-patterned pink tie. He is smiling, though still suffering from a pre-Christmas virus. “Too many speeches,” he explains hoarsely.

Our table is in a discreet corner of the restaurant. The decor is modern but unfussy. A tall waiter arrives with a jug of water. “Good evening . . . I’m sorry, good afternoon,” he begins, inauspiciously. “We have two lunch menus, one basic, one à la carte.”

We opt for basic: two plates of smoked salmon with potato salad and horseradish cream followed by stir-fried prawns. Song is partial to Dutch beer but declines my offer on health grounds. I suppress my inner Calvinism and order a “Dark Desire” chocolate medley for dessert.

Song, an only child, was born in Seoul in 1941. His childhood was scarred by the Japanese occupation, the second world war, and the Korean war. His grandfather was a newspaper publisher and a leading figure in the independence movement: “We were always under close [Japanese] surveillance, fearful of imprisonment and torture. My parents’ job was to prevent me from accidentally spreading what I had heard of the family conversation,” he says.

Three months after the US liberation in August 1945, Song’s grandfather was assassinated. “That had a huge impact on me and the entire family and my father emphasised that not only he but also I should never set foot in politics.”

In 1950, the North Koreans invaded. Seoul fell in three days. The family went into hiding in a hot and humid bunker. Song, aged nine, was told to forage for food in the countryside, making a daily 20-mile round-trip dodging American B-29 bombers and North Korean patrols.

He recalls these trips vividly. “I saw hundreds of corpses lying on the street every day and I still remember the stench of rotting bodies in the summertime. These harsh experiences made me question why on earth people are sometimes so cruel to one another.”

Song speaks slowly and precisely, without emotion. He eats sparingly, too. My smoked salmon, spiked with the horseradish dressing, is nicely fresh.

He says he was naturally attracted to international law, though his studies at Seoul National University were interrupted by the student revolution. “We installed a truly democratic government but it only lasted nine months before the military coup [in 1961].” The university closed down but Song, ever diligent, took the judicial service exam and was one of a tiny elite who passed. (“0.1 per cent in those days, now it’s four to five per cent,” he notes.)

Song’s big break came with the award of a Fulbright scholarship to the US. He chose Tulane in New Orleans, Louisiana, less for the swinging 60s parties but more for the French cultural link and the chance to study the Napoleonic code, which he still considers “the first modern codification of civilian life”.

America and its commitment to individual freedom had a profound impact. “Korea was so poor at the time. We didn’t have any discussion culture at all. I was literally a hillbilly guy. At one point, I thought anything western was good.”

Back home, and now fluent in English, Song was a rare commodity. Korea was growing fast in the 1970s and 1980s, a dynamic exporter challenging Europe and the US. Trade disputes erupted and he became the go-to lawyer for the government.

Three years short of retirement, Song was approached to be one of the ICC’s first judges. He remained fascinated by international criminal law and knew all about the Nuremberg and Tokyo war tribunals, but these were “victors’ justice”. Something more ambitious was needed: a permanent and independent court that would investigate and prosecute crimes against humanity, war crimes and genocide in situations where countries are unwilling or unable to do so themselves.

As our waiter arrives with the main course, a generous, ornate combination of stir-fried prawns, garnished with spinach and risotto, I ask Song whether the world was ready for the ICC?

“In spite of all the obstacles, limitations and challenges, the ICC has made a strong impact in the direction of peace, stability, human rights and the rule of law.” He pauses: “Through law we can change the world!”

Nevertheless, the long arm of the ICC is often tied behind its back, I counter. The process of referral, discovery, trial and appeal can take years. Witnesses want protection and sometimes relocation, which has involved bringing extended families from Africa to Europe. Language is a huge barrier, despite interpreters. Even the choice of victims is difficult, especially in cases involving war crimes.

“Yes, that’s a very accurate observation,” Song concedes. The remoteness of The Hague courts from the victims and witnesses is a problem, too. The court attempted to hold in situ trials in Africa, but the facilities, right down to the power supply, were inadequate. “Nothing is easy for the ICC,” he concludes.

The ICC’s first chief prosecutor was Luis Moreno Ocampo, a flamboyant Argentine version of Jean-Paul Belmondo. Equally at home in Davos as in The Hague courtrooms, he opened numerous investigations. In 2008, he began to push aggressively for an arrest warrant against President Omar al-Bashir of Sudan, for war crimes during the Darfur conflict. Some criticised Ocampo for overstretch; others say he was necessary to put the ICC on the map.

Al-Bashir is still at large. The Sudanese leader has visited African countries who, having signed up to the ICC, are supposed to arrest him. Song concedes it is embarrassing but says al-Bashir’s travels have been constrained more recently for fear of arrest. Such deterrence shows the value of the ICC more generally, he argues (though the principle of bringing cases against leaders remains contentious, as shown with President Uhuru Kenyatta of Kenya, where the ICC had to withdraw charges of crimes against humanity for lack of evidence).

Song has been a tireless evangelist for the ICC, visiting more than 60 countries. The number of member states has risen to 123, including newcomers such as Bangladesh, Chile, Guatemala, the Philippines, and Tunisia. The US, having initially been extremely hostile, has become more co-operative under President Obama. That may change with Palestine’s expected accession to the ICC next month. The Palestinian Authority has indicated it will accept ICC jurisdiction in the hope of prosecutions against Israel and Hamas. The prosecutor has opened a preliminary examination, but Song notes nothing has been decided.

We return to Africa, which he has visited 10 times, and one mission in 2009 to the Democratic Republic of Congo. The ICC’s first ever trial featured a Congolese warlord named Thomas Lubanga, who was accused of recruiting child soldiers. Song was determined to make the case for the ICC in Lubanga’s own village. His staff was opposed.

“I said, ‘I’m 70 years old, I’ve lived a long life. This is my last opportunity to make a small contribution to international peace and justice. If you guys don’t want to go, I will go alone.”

His team flew in a rickety UN plane carrying hundreds of water bottles and a few machine guns. After a near-crash landing at Kisangani airport, he took a UN helicopter (”really dangerous, really scary”) into the jungle. There was no welcoming party; the village, fearing mass arrest, had fled. A local missionary coaxed them back.

Later that day, Song spoke to a crowd of 500 hostile people in a mud building-come-town hall. His aides were so alarmed they called in a UN peacekeeping force of Bangladeshi soldiers. Again he tried to explain the ICC’s mission, this time with a twist: a 10-minute video of Lubanga’s trial and his prison in Scheveningen outside The Hague.

“The atmosphere suddenly turned favourable because they assumed that Lubanga’s prison was the same as their old prisons but then they saw the modern facilities with a television set and sports facilities. Lubanga appeared well-dressed before the judges looking very healthy and even trading jokes with the prosecutor and his own defence counsel.”

The village elder said he was now confident in a future acquittal. Song then visited another village nearby. “This village had no men, just all women, widows and tiny, tiny kids. They were all killed or mobilised. The women put on a pantomime for me showing how the rebels had invaded at night and killed all their relatives as the sun rose.”

Song asked how he could help. The women rejected money and asked for elementary education for their children who, deprived of books and toys, had never heard of the term “school”. Song proudly notes that the programme is under way, the first case of the ICC’s provisions for reparative justice for victims.

These tales from the heart of darkness have left me momentarily speechless. Several prawns lie untouched in the risotto. Song’s plate is half full. The waiter hovers. I wave him away.

Lubanga was ultimately convicted in a landmark ruling. Song admits African countries are having second thoughts about the ICC. There is talk of setting up their own court. Song counters that one-quarter of all ICC staff members are Africans, including Ocampo’s successor as chief prosecutor, Fatou Bensouda of Gambia.

“The Africans strongly criticise that we are biased. I don’t think that is true . . . We never targeted only Africans. What is being targeted in Africa is impunity.”

He predicts that the prosecutor will bring cases from non-African countries but declines to be drawn. The waiter arrives with my chocolate mousse. I turn to an equally sensitive subject: the seizure in June 2012 of four ICC staff in Libya on spying charges. Song played a vital role in their release, but the full story has never been told.

The incident relates to Saif al-Islam Gaddafi, son of the deposed Libyan leader. The ICC still wants to bring a case against Saif, but he remains in detention in the rebel stronghold of Zintan. In 2012, the court sent Melinda Taylor, an Australian lawyer, to help with Saif’s defence in the ICC case. Taylor was detained for allegedly passing coded papers to Saif, along with three ICC staff. Song immediately called the president of Libya, who promised to secure the release of the hostages in 72 hours. Nothing happened. “I soon realised the problem: no one was responsible for anything. So many chiefs; no Indians.”

A Libyan delegation arrived in The Hague. Hours of fruitless negotiations followed. Song switched tack and invited them all to a Michelin one-star fish restaurant in Scheveningen. A summons to Tripoli followed. His Italian registrar insisted on going, but the Libyans did not want a woman. Song resolved to go himself, despite tearful entreaties from his wife.

His delegation was greeted in Tripoli by a fleet of black Mercedes-Benz S-Class 600. The trip to Zintan took two-and-a-half hours. Heavily armed militia stood guard as Song took his place on a podium alongside the local commander. “He and I were supposed to engage in negotiation all over again. At least 300 people were watching us,” says Song, mildly amused, “the Maginot line was that I was not going to offer any sincere apology because we didn’t do anything wrong.”

Song again chose the soft approach: a tribute to the sacrifices of the Libyan revolution, followed by a bow. The hostage talks went back and forth. Around 4pm, the commander proposed a lunch break. Song insisted that he first wanted to see the captives. “After a long pause, he said, ‘all right, OK, follow me’.”

Song and his entourage wound their way through the building until they came to a white line. No one could cross except the president. Song’s chief of staff grabbed his arm and urged him not to risk being detained. Song shrugged him off and walked into a huge, well-decorated and air-conditioned room.

He was stunned by what he saw: four hostages covered in traditional Libyan dress from head to toe. He took time to identify them. “They looked like ghosts. We just hugged one by one and I said: ‘I came here to take you home, don’t worry.”

And so he did, after yet more Libyan haggling. The story is a fitting climax to our three-hour lunch — and Song’s presidency at the ICC (he stepped down this week after six years). As we prepare to leave, he offers a glimpse of the pressures on the man and his office: “I have been very lonely here. I don’t talk to people. I play golf alone or sometimes with my wife. I don’t want to give people the wrong impression.”

I ask if he is still an optimist. “I am a born optimist,” he replies, adjusting his flat golf cap. “The ICC is not mission impossible; it is just mission difficult.”

Lionel Barber is editor of the FT

Illustration by James Ferguson

Copyright The Financial Times Limited 2022. All rights reserved.
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