Déclaration: 3 juin 2024

President Akane delivers Keynote speech at the IBA ICC Moot Court

President Moot Court

Participants and organisers of the ICC Moot Court Competition,

Ladies and gentlemen,

It is a great pleasure for me to be here today on the occasion of the opening of the 2024 IBA ICC Moot Court Competition to deliver a brief keynote speech. 

I started working as a Judge of the ICC about 6 years ago in March 2018. Up until my election as president 3 months ago, I worked as a pre-trial Judge handling several situations. At the same time, I was also temporarily assigned to the Trial Division, where I worked on the Al Hassan case arising from the Mali situation.    

Before joining the ICC, I was a prosecutor in Japan for a long time, litigating before Courts of first instance, appeals and the Supreme Court of Japan. During this time, I taught criminal procedure at law schools in Japan, where I was also in charge of the moot court programs. I therefore know from my own experience that moot courts can be a useful tool to become familiar with the law and procedure of criminal proceedings. 

The ICC is entrusted with a noble mandate: to fight against impunity and establish the rule of law by carrying out fair judicial proceedings. This is an enormous responsibility which can only be realised by a lot of committed professionals, both within and outside the ICC, working together. The future of international justice is dependent on aspiring young professionals such as yourselves. I hope that the ICC moot will be an opportunity for aspiring youth to further familiarise themselves with ICC proceedings, acquire advocacy skills and connect with like-minded people. 

The ICC is the only permanent international criminal tribunal. While it deals with crimes committed in contexts which can easily be politicised, the Court is a judicial institution; as such we conduct criminal proceedings while meticulously respecting international fair trial standards. International Criminal Justice and the ICC project reflects a promise that was made by humankind; that even in difficult circumstances, the rule of law must prevail and the most serious crimes of concern to the international community as a whole must not go unpunished. The more conflicts and alleged crimes have come under the ICC’s purview, the more animosity and greater challenges the Court has also faced. This has been amplified with high-profile investigations and cases. Notwithstanding these challenges, we must collectively work together to ensure that the promise made carries forward. This is why your participation in this moot court and your interest in the ICC is important.

This year’s moot problem features the war crime of intentionally directing attacks against historic monuments and the crime against humanity of persecution, as well as other procedural issues. This is of course a fictitious case. There are also several constraints, and the scope of your arguments will most likely be much more limited than that in actual proceedings before the ICC. 

However, the issues contained in the moot problem are actual issues that may arise in real world situations or those that have been relevant in actual cases before the Court. One of the great characteristics of this competition is also that many of the judges who will pose questions to you are familiar with the practice in ICC proceedings. I am therefore confident that in attempting to persuade these Judges, you will learn a lot about the actual practice of ICC proceedings, and not just the theory.

This leads me to another point that is of importance. In my experience as a practitioner and lecturer, those who study the law at times have a tendency to overly focus on the theoretical aspects. Theory is of course important, but I believe that theory that is disconnected from practice  will be limited in  value. 
At an abstract level, there are often situations where a theory looks flawless on paper but does not work out at all when applied in an actual trial. Alternatively, looking at theories through the prism of actual cases often also gives rise to new issues to further research .

There is, as such, a sort of mutual interdependence between theory and practice. This is why I believe that moot courts are a useful exercise for students researchers and practitioners, as one can interact with the delicate balance between theory and practice. 

As I have mentioned before, there are of course inherent limitations in this exercise. My experience as a legal practitioner in Japan and at the ICC undoubtedly illustrates that the most important aspect of a criminal trial – be it at the international level or at the domestic level – is factual findings; more specifically factual findings within the strict confines of the charges.   

These factual findings are carried out in line with applicable rules and based on the examination of the evidence. Factual findings may also  at times be based on a process of making inferences within the confines of the applicable burden of proof. For those learning about the ICC, the focus is often on the crimes and their interpretation in jurisprudence. But I would like to stress that in practice, this process through which factual findings are made is the crux of criminal proceedings and has the biggest impact on the outcome. Indeed, if you look at the decisions issued by different Chambers of the ICC, you will quickly realise that  the vast majority of them relate to the evidence and how we appreciate it. 

In the sense that the relevant facts are already provided via the moot problem, and the arguments you would advance relate mainly to the law, moot courts are to an extent detached from actual proceedings. 

This does not mean that one should be creative and make up facts – or jurisprudence for that matter – which is clearly not what the competition envisages. 

What I would like you to do however is to be aware of these limitations and the importance of facts and rules on the evidence, while you construct the best possible pleadings in line with the rules of the competition. 

Finally, I note that as no more than 5 teams can participate from each country, many teams have already competed in and qualified through national and regional rounds. This is already a significant accomplishment and I would like to congratulate you for this.

Dear participants, 

I hope you make the most out of this unique experience. I wish you all the best in these international rounds and in your future endeavors as legal professionals.