In its short life, the International Criminal Court (ICC) in The Hague has indicted fourteen persons, launched two trials, 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 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 naive, but dangerous.”
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? 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 United Nations Security Council yet forestall “rogue” prosecutions, its governing statute grants the prosecutor substantial freedom to pursue cases on his own initiative, but subjects 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 especially - merit a response.
It is regrettable then, if understandable, that a number of court officials and NGO 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 entirely divorced 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-soldiers. Why not acknowledge that both the target and the nature of the indictment were convenient, even attractive, not only because conscripting child-soldiers is a heinous act worthy of sanction, but also because Lubanga was already in detention in the DRC, thus enabling the ICC to secure custody over its first defendant.
To take another example, inadequate attention historically accorded to crimes against women and children means that it would be appropriate for the prosecutor to highlight them in his charging strategy and case selection, as does an ongoing prosecution of widespread rape and related sexual violence in the Central African Republic.
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 might 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 trials); or its independence (in appropriate circumstances, by charging officials of governments which have referred situations to the court).
It would be wise and valuable in itself for the International Criminal Court 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 discussion 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 or bias.
The court’s president, Judge Sang-Hyun Song, has rightly called the ICC “a judicial institution operating in a political world.” That’s no easy feat even in the best of circumstances. Speaking with greater candour about the prosecutor’s role is one way we all can help.