The ICC at 10. (Symposium: The International Criminal Court at Ten)

• Published date: 22 September 2013
• Author: Dicker, Richard
• Date: 22 September 2013

INTRODUCTION

It is a pleasure to be back at Washington University Law School at the invitation of the Whitney Harris Institute. Leila Sadat's leadership on the International Criminal Court over many years has been an inspiration, and this conference is the latest demonstration of her vision.

As many of you know, in ten years the International Criminal Court has opened investigations in seven different country situations. It is worth noting that the Court has issued arrest warrants against a sitting head of state and a minister of defense. It is conducting proceedings against a former head of state, a former vice president, and several presidential candidates. Certainly, 15 years ago when we left the FAO Building in Rome in the early morning hours of July 18, 1998, a court with this extensive docket would have seemed like science fiction. The ICC has succeeded in heightening expectations for justice, and it has become the address for justice when the national authorities fail to do their job prosecuting the most serious crimes.

Not surprisingly, given the Court's daunting mandate, there have been problems. As strong supporter of the ICC, I believe that when there are shortcomings in implementing its mandate, it is important to identify those in a principled and constructive manner to assist the court in doing better. As it begins its second decade, all parts of the Rome Statute system, including court officials in all organs, states parties individually and collectively as the Assembly of States Parties, and civil society need to "up our game." Challenges the ICC has faced so far include the slow pace of the first and only completed trial; the difficulty of the court making its proceedings relevant in the communities most affected by the crimes thousands of miles from The Hague; flaws in prosecutorial strategy in investigating and selecting cases; and most recently, intense budget pressure from the largest paying states parties. Some of these problems flow from the court's daunting mandate, while others are more self-inflicted injuries.

I want to focus on a fundamental problem--specifically, the intersection of the court's limited jurisdictional reach with the unevenness of the political terrain on which it carries out it judicial mission. By unevenness I mean the reality that the leaders of more powerful states and those they protect elsewhere are so much less vulnerable to ICC prosecutions than the leaders of smaller, weaker states. In other words, the Court's writ does not apply equally to all. Unfortunately, the ICC has yet to realize the potential to minimize unevenness in accountability and this is a problem. Court critics use that failing to condemn it harshly and, I believe, unfairly. I think the roots of this failure need to...