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International Criminal Court: Justice and politicsA key institution of modern justice, the International Criminal Court (ICC) must learn to speak to the world it inhabits. Much unease about the court boils down to one issue: how should its prosecutor decide, among thousands of crimes and perpetrators within his jurisdiction, which ones to charge, writes James A. Goldston in an article on the openDemocracy website.
In its short life, the ICC in The Hague has indicted 14 persons, launched two trails, and provoked controversy across the globe. Kofi Annan hailed the court’s birth in 2002 as “a great victory for justice and for world order”. Muammar al-Qaddafi, Libya’s president and chair of the African Union, branded the arrest-warrant issued to his Sudanese counterpart Omar al-Bashir an act of “first-world terrorism”. John R. Bolton, before he became United States ambassador to the United Nations, famously called the ICC “a product of fuzzy-minded romanticism that is not just naïve but dangerous”.
Prosecutorial discretion is a common method of triage in overcrowded legal systems. But it is unusually contentious at the ICC, given the epic scale of the crimes at issue (including genocide and crimes against humanity), and the court’s limited capacity (three courtrooms and no police force) to address them.
In order to make the court more than a pawn of the UN Security Council yet forestall 'rogue' prosecutions, its governing statute grants the prosecutor substantial freedom to pursue cases on his own initiative, but subject him to judicial review. As indictments have been issued against rebel leaders in the Congo and Uganda and government figures in Sudan, complaints have grown that , notwithstanding this careful balance, the court is targeting Africa or currying favour with individual states.
Much of this criticism represents the predictable reaction of those who have never reconciled themselves to the idea of legal accountability for mass murder. As such, it simply confirms that the court is doing its job.
But other disenchanted voices – among civil society and victim communities, particularly – merit a response.
It is regrettable then that a number of court officials and non-governmental organisation allies have thought it sufficient to proclaim that the role of the prosecutor is to “apply the law. Nothing more. Nothing less.” Such formulations may sound principled and appealing, but they ring hollow to anyone familiar with the way courts function in practice. For the law and its institutions can never be divorced entirely from their surrounding environment.
The ICC’s first trial – of a former warlord in the Democratic Republic of Congo (DRC), Thomas Lubanga – can illustrate the point. The friends of the court have been at pains to explain why a case, arising from a war in which millions were killed and countless numbers raped, should focus on the (comparatively) narrow matter of child-soldier.
Why not acknowledge that both the target and the nature of the indictment were convenient, even attractive – because Lubanga was already in detention in the DRC (enabling the ICC to secure custody over its first defendant), and because conscripting child-soldiers is a heinous act that exerts powerful hold on public attention?
Such an acknowledgement may lead to a more inclusive approach that nonetheless accepts the limits of the courts capacity – for example, focus on particular categories of crimes, as does an ongoing prosecution of widespread rape in the Central African Republic. The inadequate attention historically accorded to crimes against women and children means that it would surely be appropriate for the prosecutor to highlight them in his charging strategy and case selection.
It is essential to be guided by “the law” and “the evidence”. But in many situations, doing so may not sufficiently narrow the range of possible charges or perpetrators. The prosecutor may have to consider other factors as well in deciding how to proceed.
These may include the need to demonstrate the court’s viability (for example, by charging at a level or in a manner that prevents states from simply ignoring the court’s orders); its efficacy (by charging persons who may readily be apprehended); its efficiency (by limiting the number of charges, and thereby the length of trails); or its independence (in appropriate circumstances, by charging officials of governments that have referred situations to the court).
It would be wise and valuable in itself for the ICC to take such issues into account at this stage of its evolution. But it would also be of great practical benefit at a time when the ICC’s very existence remains under challenge. More broadly, it would help the court and its underlying mission overcome the atmosphere of polarised discussions that still surrounds it, which does little to educate and inform.
If the ICC is eventually to command sustained public support, there must be an effort to move beyond platitudes in explaining the nuanced nature of the prosecutor’s discretion: grounded in law and evidence, but of necessity considering issues of institutional strategy and policy while refraining from partisanship of bias.
The court’s president, Judge Sang-Hyun Song, has rightly called the ICC “a judicial institution operating in a political world”. That is no easy feat, even in the best of circumstances. To speak with greater candour about the prosecutor’s role is one way to help.
This article was first published on 13 January 2010 on www.opendemocracy.net
