This panel was convened at 1:00 p.m., Friday, April 10, by its moderator Alexander K. A. Greenawalt of Pace Law School, who introduced the panelists: Elizabeth Evenson of Human Rights Watch; Nina H.B. Jorgensen of the Chinese University of Hong Kong Faculty of Law; Makau Mutua of SUNY Buffalo Law School; and Sarah Nouwen of the University of Cambridge. *
THE INTERNATIONAL CRIMINAL COURT: PROMISE AND POLITICS
By Makau Mutua ([dagger])
The International Criminal Court (ICC or Court) is an institution born of necessity after a long and arduous process of many false starts. The struggle to establish a permanent international criminal tribunal stretches back to Nuremberg. (1) The dream, which was especially poignant for the international criminal law community, for a permanent international criminal tribunal was realized with the adoption in 1998 of the Rome Statute of the International Criminal Court. (2) The treaty entered into force in 2002. Those were heady days for advocates and scholars concerned with curtailing impunity. No one was more ecstatic about the realization of the ICC than civil society actors across the globe, and particularly in Africa, where impunity has been an endemic problem. (3) Victims who had never received justice at home saw an opportunity for vindication abroad. This optimism in the ICC was partially driven by the successes, however mixed, of two prior ad hoc international criminal tribunals--the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia.
Advocates were hopeful that the ICC would learn valuable lessons from the mistakes of the ad hoc tribunals and become the altar of international justice for states that were unable, or unwilling, to hold accountable the most egregious offenders. However, there is a growing narrative that the ICC has been more of a heartbreak for victims--and an impotent protagonist for offenders--than its supporters had imagined. More than a decade since it went live, the ICC has badly stumbled while its beneficial effects to municipal law have been minimal, if any. The institution that was supposed to drastically curb the culture of impunity across the globe, and open a new page for the rule of law, is today more a symbol of what could have been. The concept of the ICC remains valid, but the results point to an institution that is under siege. What went wrong? Can the ICC be salvaged, or has it been mortally wounded by its own mistakes and the institutional defects inherent in it? I offer several reasons why the ICC has failed to lead a new era in the domestication of the norms and processes of international criminal law. The international criminal law and human rights communities are prone to narratives of optimism but blind to sins of conception. This disconnect does not augur well for the ICC. It may not be too early to think about a post-mortem of the ICC if fundamental reforms are not carried out to save the institution.
FAILURE OF LEADERSHIP
Young international institutions, especially those born with high expectations, must live up to the hype which brought them into existence. To do so, they must be seen to effectively discharge their mandates, but this requires a leadership that is able to mold the institution and build clear and purposeful objectives and structures. For the ICC, not a single office was more important than the Office of the Prosecutor (OTP). The person of the prosecutor occupies a unique office within the court. The prosecutor is the single most important individual within the system, and is the key to the effectiveness of the court and the judges. It is the prosecutor who must decide the situations that warrant investigation and prosecution. In that sense, the prosecutor exercises discretion that can ultimately determine case selection and the perception that the world has of the court. Judges are clearly important actors within the court, but they are helpless to adjudicate cases that the prosecutor has failed to investigate and litigate effectively.
With all due respect to him, Luis Moreno Ocampo, the inaugural prosecutor of the ICC, must share some of the blame for the failures of the court. He did not create a formidable institutional identity for the OTP. This would have given the judges opportunities to impress the court's foes and friends alike. He was arguably a successful champion of justice in Argentina, but Moreno Ocampo's performance at the ICC left much to be desired. His proclivity for theatrics and a showman's flair boomeranged against the court. He was so consumed with public appearances that he apparently did not pay adequate attention to his role as the founding prosecutor. By the time he left office, the ICC had virtually nothing to show for its decade of existence. The lack of effectiveness of the OTP and Moreno Ocampo's failure to engage meaningfully with states, sapped the enthusiasm that many had for the court. The long interminable delays and setbacks in the cases he pursued caused much despair among victims and advocates. (4)
DEFECTS OF CONCEPTION
In retrospect, the acclaim that greeted the court should have been tempered by its many structural and normative problems. First, the introduction of the UN Security Council (UNSC), a political body, into the work of the ICC, a legal body, unduly politicized it and opened it up to attacks that have weakened it to domestic audiences. (5) The UNSC arrogated to itself the power to refer (6) and defer cases, (7) and can do so for reasons that have nothing...