The following text was written by Edward Haxton and was published on July 24 on ejiltalk.org

I begin by asking Hofmański what led him to become an ICC judge. Hofmański points to his ‘twofold’ career as a criminal law professor and judge in Poland. When Poland decided to put forward a candidate for the 2014 ICC judicial elections, Hofmański’s CV – a criminal law professor for nearly 45 years and a Supreme Court judge for 20 years – made him an obvious candidate.

Hofmański readily accepted the nomination as Poland’s judicial candidate.  ‘I was ready for a new challenge in my career.’  He wasn’t ready though for the campaigning required to be elected an ICC judge.  ‘For me, personally, this was something completely new that I hadn’t encountered before as a judge or in academia.  I was shocked to discover how the election process worked.  At times it felt like my personal competencies, my knowledge, were less important than the diplomatic aspect of the campaign.’

Sworn in as an ICC judge in 2015, Hofmański was assigned to the Appeals Division.  I ask him how he found the move from domestic to international judge.  ‘You know, it was a shock.  A good shock, I think!’  In what way? ‘Firstly, the unique combination of civil law and common law cultures was very new to me.  Colleagues from different legal backgrounds see things in different ways and the challenge was to build relationships with them.  But at the same time it was a good challenge, a rewarding challenge, because I think during my nine years at the ICC some of the best professional relationships I had were with common law colleagues.  And this helped me develop an understanding of the common law system.  But this experience [being an ICC judge] was challenging for other reasons too.  In particular, the complexity and the political sensitivity of the cases we handled. This was something new for me.’

It’s interesting to hear Hofmański highlight the importance of building relationships with his colleagues in the judiciary, when many observers – including the Independent Expert Review – have observed a lack of collegiality among ICC judges.  One of the cases Hofmański was involved in during his time in the Appeals Division, the Bemba decision, is an oft-cited example of this perceived lack of judicial cohesion.  In its decision, a bitterly divided Appeals Chamber overturned (by a 3-2 majority) Jean-Pierre Bemba Gombo’s conviction by the Trial Chamber for war crimes and crimes against humanity in the Central African Republic.  Hofmański and Judge Sanji Mmasenono Monageng delivered a 269-page dissenting opinion alongside the majority decision and two members of the majority (Judges Christine Van den Wyngaert and Sir Howard Morrison KC) appended a separate opinion. (The panel’s fifth member, the then ICC President Chile Eboe-Osuji, did not write separately.)  Hofmański describes the Bemba decision as ‘the most difficult case I had in my life. Not only because I was unable to join the majority, but also because of the legal complexity of this case and the consequences of the judgment.’

In a previous interview, former ICC judge Sir Howard Morrison KC identified the three-yearly turnover of six judges at the Court as a root cause of the judicial collegiality issue.  Morrison contrasted the situation at the ICC with the ad hoc tribunals where the judges were permanent and therefore had longer to get to know each other and to adopt a more homogenous approach to deciding cases.  Hofmański agrees with Morrison that the regular turnover of judges at the ICC has an impact on collegiality.  ‘The human element is extremely important.  The ICC system of renewing the judicial bench every three years led to the impression that I had basically three different terms of office.  I was appointed to the Appeals Division from the very beginning, so I knew that I would be in the same division for the duration of my term as a judge.  But the change in the composition of the judges in the Appeals Division every three years dramatically changed the situation and the type of challenges you faced.’  In what way, I ask.  ‘Not only because of the change in judges, the individual personalities of the new people coming in, but also because you have judges coming not only from different legal backgrounds but also from different cultural backgrounds.  You have to work hard to be collegiate, but it’s not always easy to understand your colleagues. The fact that some of your colleagues change every few years makes it even more difficult.  In the beginning it was particularly difficult, but it got easier with each three-year period.  And the last [three-year period] was of course completely different for me because of the role I held.’

This seems like an appropriate moment to move the conversation on to Hofmański’s Presidency.  I start by asking him why he wanted to become President.  His answer is modest and self-effacing.  ‘I never wanted to be President of the ICC!  That was not my dream.  I always thought that the best place for me was just to work on appeals.’  So what happened, I ask.  ‘It was a special situation at the ICC at the time,’ he explains. ‘Some colleagues were unable to run as they were very busy in the Pre-Trial and Trial Divisions and couldn’t switch to the Appeals Division which is a requirement for the President.  There was also the issue of contamination; because I was an Appeals judge from the beginning I wasn’t involved in any cases at the pre-trial or trial levels, therefore as President I wouldn’t be barred from hearing any cases at the Appeals level. An additional factor is that, while not a legal requirement, it was probably time for a President from the Eastern European region, as all the other regions had already had a President.’ Tellingly, his judicial colleagues also pushed him to run.  Hofmański says that ultimately all these factors persuaded him to run in the 2021 elections for the role of ICC President.  ‘But still I was not very happy about it.’

When you were deciding to run for President, I ask Hofmański, what did you think you could bring to the role and what were your priorities? ‘I felt like after six years at the ICC I was able to understand what this institution really needs. It seemed to me that what was really needed was for the Court to develop a better relationship with States.  I didn’t know whether I had the skills to make this happen but at the same time I felt I could offer a fresh start as someone who, as an Appeals judge, hadn’t really been involved in Court politics.’  However, Hofmański was clear that building relationships with States must not lead to the Court’s independence being compromised.  ‘I wanted to gain more support for the Court, but at the same time protect the independence of the institution.  The International Criminal Court is a very special type of international organisation; States have to provide the resources but they are not in charge; they cannot tell us what to do, how to proceed, what to adjudicate.  I thought it was really important to have good relations with States to clarify this as it wasn’t clear to everybody.’

Hofmański has led the Court through a number of challenges during his Presidency.  I ask him about the 2023 cyber-attack, which was unprecedented in scale and sophistication and resulted in the Court shutting down its IT systems for several weeks.  ‘[It] was a huge, huge challenge for the whole institution,’ Hofmański notes.  ‘First and foremost, for the Registrar, because he is responsible for the administration of the Court, but also for the overall leadership of the Court who had to face the consequences of this horrendous attack.  We were unable to function for a long time and then, as we started to restore our systems, we realised that we would have to rebuild a whole new, more robust system.  And our needs in that regard far exceeded our resources.’

To raise the funds for this much-needed digital and physical security overhaul, the Registrar has set up a Special Fund for Security and is calling for financial contributions from States Parties.  Hofmański is clear that States Parties need to step up in the Court’s hour of need.  ‘We are in a difficult situation, a crisis even, and we need States Parties to help us.  This is your Court.  You created us and we cannot fulfil the mandate you have given to us.  Without additional resources we won’t be able to recover the IT system let alone build a new secure system for the future.  We have multiple attempted cyber-attacks every day and their frequency and sophistication is only going to increase.  So help us.’

With several highly sensitive investigations currently on its docket, and the Court operating in a new, heightened risk environment, Hofmański considers it to be more important than ever before that States Parties show support for the ICC. He’s concerned though that the opposite is happening.  ‘After the cyber-attack and the arrest warrants issued by Russia against ICC Judges and the Prosecutor, we hoped that the Assembly of States Parties, or at least the Bureau, would be able to issue a statement condemning these hostile acts against the Court and affirming their support. But this wasn’t the case.  Ultimately only the ASP Presidency issued a statement of support.  This shows that there is not universal support for the Court among States Parties.’

Amidst the challenges, Hofmański recalls Armenia’s accession in February 2024 as one of the most rewarding acts of his Presidency, particularly given ‘the huge pressure Russia put on them not to join’.  And while ‘moving from 123 to 124 States Parties may not seem like much on the global scale, it’s important symbolically and gives hope that maybe other States will follow Armenia’s brave step in the future.’

Looking towards the long-term future of the ICC, Hofmański says it’s hard to predict, and much will depend on the geo-political situation, but he recognises that the Court may need to evolve.  ‘One of my thoughts was that, maybe in 40 or 50 years, we will move to regional ICC courts with a ‘Supreme Court’ in The Hague.’  He explains that ‘this was one of the reasons I started to develop the focal point concepts just to build awareness of the Court, of international criminal justice, across regions and on the ground.’

Hofmański is clear though that if the Court is still to be around in 50 years, it will need to navigate more immediate concerns regarding the lack of arrests and trials in the pipeline.  ‘It is my biggest worry for the future.  We have four trials now.  One is in the deliberation stage and three in the hearing stage.  But there’s nothing in the pipeline.’  And while Hofmański recognises that there is still a lot of investigative activity across four continents and sixteen situations, he fears that the ‘bleak scenario’ of empty courtrooms is now inevitable. ‘Of course we still hope that States will arrest suspects. But even if that happens now, preparation for the confirmation of charges hearings and trials takes time and after the current trials are completed there will be a gap.’

Given the existential threat Hofmański considers the lack of arrests poses to the Court, he is not inclined to celebrate the constraining effects of ICC warrants as others have done.  The Putin arrest warrant is a case in point.  While many have pointed to President Putin’s decision not to travel to South Africa last summer for a BRICS summit as evidence that ICC arrest warrants still have teeth even if there’s no prospect (in the near-term at least) of the indictees being arrested, Hofmański takes a different view.  ‘I’m not very happy when people say this is a victory for international law.  I’d prefer that Putin went to South Africa and was arrested.’  Likewise those lauding the Court’s ‘relevance’ for carrying out investigations in the midst of ongoing conflicts such as Ukraine and Gaza.  ‘What do we really mean when we say that the Court is ‘relevant’?  It’s relevant because there are situations, there are wars, there are atrocities, there are crimes, people suffering.  True, that’s a form of relevance.  But the Court is only truly relevant if it’s able to fulfil its mandate.  And it cannot do that without the support of States because that’s what States decided in Rome.  This is an issue which needs to be considered very seriously by States.’

Another issue on which Hofmański thinks States need to reflect carefully is the proposal for a special tribunal for the crime of aggression in Ukraine.  As ICC President Hofmański never gave his personal opinion on the proposal.  Having now stepped down as President, this interview is the first occasion on which he can speak more freely on the issue.  He’s strongly opposed to the proposal for a number of reasons and is quick to make clear that this isn’t just about a ‘turf war’ between the ICC and a potential rival.  ‘It’s not about competition between courts. The ICC has a very clear mandate and a lot to be done within the scope of its jurisdiction under the Rome Statute, so I don’t think that having the discussion just to protect the ICC makes sense.’  Hofmański’s concerns run deeper. ‘I think that, from a broader point of view, setting up the aggression tribunal is not a legitimate step for States to take, simply because States decided to put a very complicated trigger mechanism [for ICC jurisdiction over the crime of aggression] in the Kampala amendments.  Then, after the first ‘big thing’ happens [Russia’s invasion of Ukraine], the first thing States try to do is just bypass this mechanism.  Personally, I find it problematic.’  Hofmański is also troubled by the retroactive nature of the proposed tribunal.  ‘I think that the creation of a new tribunal with retroactive jurisdiction would be legally problematic.  Discussions regarding the legitimacy of the Nuremberg Tribunal are still ongoing! The value of a permanent institution like the ICC is that it looks forward, not to the past.  This is a big achievement of the international community.’  I can understand Hofmański’s pride in the ICC’s future-oriented approach to jurisdiction which (at least in theory) makes the Court less susceptible to charges of ‘victor’s justice’ dispensed after the event, but I’m not persuaded that a Special Tribunal for Ukraine would be legally problematic because its jurisdiction was retroactive.  Reflecting later on our conversation, I would like to have asked Hofmański whether he feels the same about the Yugoslavia and Rwanda tribunals or indeed cases where the UNSC refers situations to the ICC or where a non-State Party retroactively accepts the jurisdiction of the ICC.

Going back to the ICC arrest warrant for Putin, which saw Russia retaliate by placing Hofmański, several of his judicial colleagues and the Prosecutor on its wanted list, I ask Hofmański how much of a toll the last few years have taken on him personally and the judiciary generally.  Hofmański is clear that attempts to coerce or intimidate Court officials are unacceptable; he’s equally adamant though that the resilience required to remain independent and not give in to such coercion is part of the job description for ICC judges.  ‘Judges are brave people’ he says firmly. ‘We’re not children and judges running for election to the Court need to be aware that this is not a game.  We choose to serve an international court that deals with very complicated and complex cases that are, by definition, politically sensitive.  So we knew from the beginning that this kind of thing could happen.  We are aware of the political and personal consequences of what we do, but we cannot allow these consequences to influence the decisions we have to make.’

Turning to the incoming Presidency, Hofmański leaves some important issues in President Akane’s in-tray, including workplace culture, geographical representation and gender balance and generally continuing to engage with the recommendations of the Independent Expert Review.  On the issue of workplace culture, Hofmański was unaware of the scale of the problem until the IER report came out in November 2020.  ‘Being in the Appeals Division, just focusing on your judicial work, you are not aware of many things.  The first time I saw the IER report, and saw the results of the staff engagement survey, I was really shocked.  It was clear something needed to be done. So we had a discussion with the Principals of the Court and since then many steps have been taken, including the appointment of the Ombudsperson and Gender Focal Point.’  Hofmański’s not sure though how effective these measures have been.  ‘Whether they have really improved the working culture or not, it’s difficult to say.  We’ve seen the polls and survey since introducing these measures, which showed that in some organs of the Court conditions have improved but in others not really.  But it will take time to see the results.  Maybe it’s too early to judge.  Or maybe the steps taken were not radical enough.’

Hofmański’s feelings on leaving the Court are mixed, ‘in the sense that I am still full of hope for international criminal justice, but at the same time, fully aware of how difficult the road ahead will be. I worry how the Court will survive in such a demanding and complicated political situation.  The political pressure is so strong.’  For Hofmański, how the geo-political situation evolves will determine whether ‘golden or dark times’ lie ahead for the ICC.

Would he have liked to stay longer at the Court if it were possible?  The answer is a firm no.  ‘It’s time to go.  Nine years is a long time.  It’s a big piece of life. I need a rest.’  And what will that rest look like?  ‘I don’t know.  Family, dogs, walks, bicycle.’  It’s clear though that Hofmański will remain involved in the world of international law.  ‘Of course. I can’t just stop everything.’  A return to academia beckons for the author of more than 300 books, commentaries and articles on international law.  ‘I will still be involved in academia.  We have created the Kraków Center for International Criminal Justice at my home university [the Jagiellonian University, Kraków]. I will lead this institution for the first few years to help get it started.  And I will do some research.  Maybe I will write a book of reflections after nine years at the ICC.  Yes, there are some ideas.  But first I need some rest.’  Hofmański has certainly earned his rest, but it’s hard to see such a devoted and hard-working public servant staying away for long.