On 11 September 2024, I conducted the following interview with Registrar Zavala Giler. It was a wide-ranging conversation which has been edited and condensed for publication.
Registrar Osvaldo Zavala Giler (Photo: ICC)
I begin by asking Zavala Giler how he came to work at the International Criminal Court. He tells me that he first encountered the ICC in 2002, midway through his law degree, when the Rome Statute came into force. ‘I was fascinated by the idea that very few generations have the opportunity to be part of something that is just coming into existence.’
Zavala Giler’s desire to help build the fledgling Court led him to join the Coalition for the ICC in 2005. ‘I always say that I’ve been working at the Court since 2010, but I’ve been working for the Court since 2005.’ At the CICC he participated in diplomatic discussions on a number of foundational issues for the Court, such as victim participation and cooperation with States Parties. ‘I still carry with me today the principles behind this institution that we nurtured during those discussions.’ The 2005 annual session of the Assembly of States Parties was the first of many Court budgets that Zavala Giler would read cover to cover. ‘The biggest surprise of my career is how excited I became about the budgets of this organisation. And I think it comes down to the realisation that through understanding the budget, you understand the Court.’
In 2010, Zavala Giler joined the Court as Special Assistant to the then-Registrar Silvana Arbia. He went on to hold several roles at the Court, including Chief of the Budget Section and Senior Special Assistant to the Registrar, before standing for election as Registrar in 2022. I ask him what made him decide to put himself forward for this role. What did he think he could bring to it and what were his priorities? Zavala Giler says that his status as an ICC ‘insider’ was the most important factor in his decision. ‘I thought that at this moment of the Court’s evolution, with the challenges facing the ICC getting bigger and bigger, having someone from the inside with institutional knowledge of the Court, with an understanding of its history and challenges, would be of great value to the organisation.’ Zavala Giler is conscious though that his long career at the Court could be perceived as a weakness as much as a strength. He’s committed to ensuring that familiarity doesn’t leave him blind to the institution’s issues or unwilling to take unpopular decisions.
In February 2023, Zavala Giler was elected by the ICC judges to take over from Sir Peter Lewis as Registrar. Zavala Giler is a Registrar of firsts: the first non-European to hold the office; the first openly gay person to hold the position of a Principal at the Court; and the first ICC internal candidate to be elected Registrar. Picking up on the latter, I ask Zavala Giler about the significance of an internal candidate being elected for the first time. Does the judges’ decision to promote someone from within the Court – rather than parachuting in an outsider to administer the organisation – reflect a newfound confidence in the maturity and professionalism of the institution as it enters its third decade? Zavala Giler agrees but is quick to stress that ‘we have had a lot of very capable persons within the Court for a long time.’ In addition to acknowledging the potential symbolism of his appointment for an external audience, he hopes that his election as Registrar and former OTP trial lawyer Beti Hohler’s recent election as an ICC Judge sends an important message to staff at the Court. ‘For them to know that what they’re doing, the efforts they’re putting in, could also one day take them to positions of leadership within the organisation creates a sense of opportunity and enhances the commitment that they have to the ICC.’
Zavala Giler’s instinct that the ICC would need the continuity of a Registrar from within the Court was soon borne out. On 17 March 2023, just a few weeks before his mandate as Registrar was formally due to begin, the Court issued arrest warrants for Russian President Vladimir Putin and Children’s Commissioner Maria Lvova-Belova. The decision led to unprecedented security challenges which the Court – and particularly the Registry – needed to deal with urgently.
I ask Zavala Giler how he’s found an eventful first year and a half of his mandate. ‘The Court has gone through a step change in terms of security and expectations. Looking back, it’s been incredible. The challenges have been there since day one and they haven’t stopped. We had the Putin and Lvova-Belova arrest warrants and all the security concerns that came out immediately after, both in terms of the cybersecurity incident but also the Russian arrest warrants against the judges and the Prosecutor. It really shifted the organisation. You can clearly see a “before” and “after”, when it comes to how the organisation sees itself and the challenges that we face.’
The cyber incident in 2023 is a prime example of the type of challenge the Court faces in the new, heightened risk environment in which it now operates. The attack was unprecedented in scale and sophistication, severely hampering the Court for several weeks while its IT systems were offline. The Registry has led on the response to the attack and I ask Zavala Giler how he and the Court have coped. ‘It was intense. I could never have imagined the toll it takes on an organisation, the amount of pressure and uncertainty that it generates, and the toll it takes on all of us to deal with this kind of issue. It was such a difficult thing to deal with, and still is. We’re still dealing with the consequences of that and it’s almost a year to the day.’
The challenges facing Zavala Giler and the Court may be unprecedented in nature, but looking back at the tenures of his predecessors I’m struck that the Court seems to operate in a near-perpetual state of crisis. I ask Zavala Giler if this is just the nature of the institution and the work it does and, if so, whether it’s a sustainable way to function. ‘You’re starting to make me think that every Registrar comes with a crisis! But to be honest with you, this is something we need to start thinking about differently. Crisis, by nature, needs to be temporary, and the moment crisis becomes the default then you need to rethink your governance, because it’s impossible to govern an organisation in a crisis mentality. As Registrar I have been very clear that once we call something a crisis, we really contain it quickly by taking urgent decisions so we can move back to business continuity. But maybe this is something that we need to think about more, because it’s true that our mandate is very prone to these kinds of risks and we need to find a way to absorb them without as much disruption.’
One hopes so for Zavala Giler’s sake because there’s potentially more turbulence around the corner, with a decision on the Prosecutor’s Israel/Hamas arrest warrant applications and US elections – and possibly sanctions – expected in quick succession. Zavala Giler points to the spectre of US sanctions as an example of how the Court is growing and learning from past experiences. ‘Faced with the possibility of new US sanctions, the first thing we did was look back at a lessons learned document put together by Peter [Lewis] in the aftermath of the first US sanctions in 2020. So the outcome of Peter’s crisis has become the starting point for mine, and that’s already progress. You’re not reinventing the wheel.’
In addition to seeing challenges as opportunities, Zavala Giler is keen to celebrate the Court’s achievements. ‘There have also been great things happening. We’ve had important reparations decisions; we’ve opened new field presences and created linkages to the situation countries; there have been transition periods in the Presidency that have allowed us to work together and reshape the leadership of the Court; and the relationship with the OTP is really good. I’ve worked alongside Karim [Khan, ICC Prosecutor], supporting him on many difficult issues. These internal, institutional changes may not seem like big things, but even the little successes that we have achieved as an organisation have been very rewarding.’
I ask Zavala Giler to expand on his relationship with the two other ICC Principals: the President and the Prosecutor. How do three (usually strong) personalities with differing responsibilities and mandates work together to ensure that the organs of the Court are pulling in the same direction? ‘The first thing to say is that the Rome Statute is very deliberate when it comes to the relationships between the different organs. Making them work is the difficult part, because in theory we’ve created the perfect entity but how do you make all the pieces fit together in practice? What I have seen though is an incredible will from the Principals to cooperate and to work together to find creative solutions. We have built a relationship of trust where we have very open and frank conversations, we are respectful of each other’s mandates and we are now discussing in very concrete terms how we’re going to institutionalise some of the changes that we’re making. I don’t want to anticipate things, but we’re working on some exciting things. So watch this space.’
One significant success for the Court during Zavala Giler’s tenure as Registrar has been Armenia becoming the 124th member of the ICC in February this year. This good news was followed by Ukraine taking steps in August to ratify the Rome Statute. Ukraine’s move towards ICC membership is undoubtedly a welcome development. Concerns have been raised, however, at a declaration under Article 124 of the Rome Statute which purports to exclude ICC jurisdiction over Ukrainian nationals suspected of committing war crimes for seven years. I ask Zavala Giler whether the ICC shares those concerns, but he says it’s not for the Court to comment. ‘The Rome Statute was created by States Parties. Article 124 exists and if a State uses it that’s really a sovereign prerogative of the State. It’s not for the institution to say anything about it.’ I agree with Zavala Giler that it’s not for the Court as an institution to take a public position at this stage, but note that if the issue ever comes to a head it will very much be for the Court as a judicial body to rule on the effects of Ukraine’s declaration.
Zavala Giler is, however, keen to comment on other aspects of Ukraine’s ratification. ‘Ukraine becoming a State Party creates a stronger footing for our relationship institutionally and politically it sends a very strong signal. At a time when the Court is being criticised or delegitimised by some actors, Ukraine is saying “no, we want to be part of this organisation.” That sends a strong signal of our legitimacy. It also gives us a lot more stability in our operations in Ukraine. There’s a strong basis for our engagement when it comes to Ukraine’s duties and their cooperation with the Court.’
The Registry plays a lead role when it comes to State cooperation with the Court. How would Zavala Giler assess the level of cooperation the Court is currently receiving from States Parties? He acknowledges ‘there are areas where the need will always surpass the cooperation that we receive’. Witness protection is one such area, but Zavala Giler explains that ‘it isn’t because we don’t receive cooperation, it’s because the needs keep getting bigger as cases become more complex and sensitive and threat actors become more capable.’ Reparations is another area where Zavala Giler is looking for greater support from States Parties. ‘Reparations are the last footprint of the organisation in a situation country. They cannot be an afterthought.’
Ultimately though, ‘the biggest issue for us will always be arrests. That’s the big outlier and, right now, the number of arrest warrants we have outstanding is evidence that there isn’t a lot of movement in this area.’ What’s the reason for the lack of arrests, I ask. ‘Different reasons. Each case is different and presents its own set of challenges. Unlike the ad hoc tribunals, where the challenges around arrest were generally restricted to a single set of challenges, the ICC deals with diverse challenges across regions, countries and situations.’ Zavala Giler recognises it’s not just States Parties who need to do better. ‘We understand that we need to accompany States in this regard. We’re trying to develop our capabilities so that we’re able to come to States with more dedicated analysis which enables them to cooperate with the Court.’
The lack of cooperation on arrest warrants by States Parties was thrown sharply into focus by the visit in September of Russian President and ICC indictee Vladimir Putin to Mongolia. Zavala Giler cannot comment on the Mongolia visit as it’s currently under judicial consideration, but he has some general points to make on the issue of non-cooperation. ‘First of all, a failure by a State Party to arrest an individual subject to an ICC arrest warrant is a moment for the Assembly [of States Parties] to show up. I’m not being naive about the politics behind this kind of issue, but the largest part of the deterrent effect that the ICC can have – or not have – rests with States. The Court needs to know that this is something the Assembly will take on.’
Zavala Giler also pushes back firmly on the notion that the Mongolia visit proves ICC arrest warrants are toothless. ‘I don’t agree that one instance of non-cooperation delegitimises the whole ICC project. I strongly believe that ICC arrest warrants have a limiting effect on where people that are subject to those warrants choose to travel. Maybe sometimes they will go to places we don’t think they should go to, but that doesn’t mean the warrants aren’t limiting their movement.’ Zavala Giler is careful to keep his comments general, but the underlying message is clear: Putin may have visited Mongolia, but there are 123 other countries he hasn’t visited since his arrest warrant was issued 18 months ago.
The worry though is that once one State Party hosts an ICC indictee, it makes it easier for other States Parties to do so. Even before his trip to Mongolia there was speculation that Putin might attend events in other ICC member states. Does the Mongolia visit make it more likely that Putin will travel to other States Parties? Zavala Giler’s answer is an interesting meditation on the geopolitical undercurrents (and tensions) running through the Court’s caseload. ‘We have to monitor the situation. But one of the things that is interesting about the ICC right now is that its relevance has created expectations from different parts of the world. And those expectations and demands of the ICC force States to be more careful about protecting the legitimacy of the organisation, because de-legitimising the Court on one issue risks de-legitimising it on all issues. And I think we’ve come to a place where States are thinking “Okay, if I do this in this situation, it will have an effect on that other situation where I have an interest as well.” And that is only happening as the Court becomes more relevant and takes on more cases.’
We conclude by touching on a priority issue for Zavala Giler: improving geographical representation and gender balance at the Court. ‘I am convinced that the legitimacy of this Court is directly linked to how representative it is of the international community. Geographical representation is not just the desire of States to have their nationals working here. And the same with not only gender balance and inclusion, but also LGBTQ inclusion and other types of sexual and gender diversity efforts that we’re undertaking at the Court. We need to be a model of modern public administration, and that model has to capture the values of the international community.’ To assist with efforts in this area, the Court has come up with four core values: integrity, accountability, inclusion and fairness. Zavala Giler describes the core values as ‘one of our biggest recent achievements. We haven’t done a lot of publicity around it, but it’s going to come now.’ He hails the effect of applying these values to decision-making as ‘groundbreaking’.
Unsurprisingly Zavala Giler won’t be drawn on whether he plans to stand for re-election in 2028. He prefers to focus instead on the remaining three and a half years of his current mandate and implementing the vision and priorities he believes are critical for the Court and the Registry to succeed. But having spent almost the entirety of his career working at, and for, the ICC, it’s hard to imagine Zavala Giler walking away at the halfway stage.
