Finding the Prosecutor Who Can Set It Straight
Last February, soon after Libyan leader
With the
The court has failed to complete even one trial, frustrating victims as well as the dozens of governments that have contributed close to
A rare opportunity to recapture the court's early promise lies ahead: at the end of the year, the 114 states that have ratified the Rome Statute, the ICC's founding charter, will elect a successor to Moreno-Ocampo, who is expected to step down as head of the
The ICC needs a new leader who has not only the necessary prosecutorial, diplomatic, and managerial skills but also a keen sense of the importance of this moment in the development of the still fledgling institution. To achieve the ICC's promise as a global court, the parties to the Rome Statute must select a prosecutor who can meet the court's most serious challenges: concluding trials; convincing governments to arrest fugitives; conducting credible investigations in difficult places, such as
LAYING DOWN THE LAW
The ICC is the culmination of a decades-old movement to promote international criminal law. The movement started soon after World War II, with the creation of the international military tribunals at Nuremberg and
By now, however, the ICTY and the ICTR have held dozens of trials, including against senior political leaders, such as Milosevic and
Thanks in part to these courts' relative success, the international criminal law movement continued to gain traction. By the early years of this century, the Special Court for
The ICC became a reality after the 60th signatory to the Rome Statute ratified the treaty, in
In other words, unlike the ICTY and the ICTR, the ICC has very broad jurisdiction, both in time and space, but without enjoying the
COURTING TROUBLE
Given that the ICC operates in a complicated, sometimes hostile political environment, it was bound to face serious problems. Yet many of its wounds have been self-inflicted. Management and personality clashes, for instance, have hindered its development. The court's leadership was in place by early 2003, with a triumvirate formed by the prosecutor, the court's president (the court's ceremonial head, who is responsible for external relations), and the registrar (the lead administrative officer). As impressive as the three principals were, they were mismatched. Moreno-Ocampo, interpreting the independence of the OTP broadly, challenged the registrar not to raid his bailiwick and continually picked battles with the registrar's staff on everything from human resources to witness protection. He also resisted coordination with the president. These petty battles over turf and resources undermined the sense that the court's leaders were sharing a historic mission. Meanwhile, many of the ICC's prosecutors and investigators chafed under what they perceived to be Moreno-Ocampo's micromanaging and erratic decision-making. Some of the OTP's most experienced staffers quit; those who remain say that low morale continues to plague the court.
Worse, the OTP has not made enough concrete progress. It has yet to conclude a single trial. Its first case, which indicted the Congolese militia leader Thomas Lubanga Dyilo for recruiting and using children as soldiers, has faltered repeatedly. Some observers have chided Moreno-Ocampo for failing to charge Lubanga with any crimes of sexual violence, a scourge in the Ituri region while he was in charge -- this was a lost opportunity, the critics argued, considering the extent of gender-based atrocities in
Six years after the
A related problem has been the ICC's lack of legitimacy among some African leaders. Although 31 African countries have ratified the Rome Statute, many of them, as well as the
This is unfortunate. For one thing,
By commission and omission alike, the OTP has repeatedly made itself a target for charges of politicization. This has come as a surprise to those who applauded Moreno-Ocampo's decision early on to create within the OTC a special office to encourage cooperation from other international actors and ensure the ICC's complementarity with national courts. Moreno-Ocampo has undoubtedly faced significant pressure to go after senior leaders, but having chosen to pursue the big fish and failed to catch many, now he does not have much to show for his efforts. Particularly during its nascent phase, the ICC needed a more effective operator, institution builder, and diplomat.
TRIALS AND TRIBULATIONS
There are reasons to hope that the ICC can still become a viable agent against impunity, chief among them the desire of victims worldwide to see the court succeed. The upcoming election of the next prosecutor is an occasion to do right by them.
African leaders are understandably pushing for an African prosecutor. The continent has largely embraced the Rome Statute, and the ICC has focused on some of
At the bureaucratic level, the next chief prosecutor will need to be a manager who can lead on multiple fronts. First among those must be an effort to gain back the confidence of the ICC's investigators, analysts, and other prosecutors. Recruiting and retaining the most highly qualified staffers means giving them substantial authority and providing them with guidance without micromanaging them. Another important task will be to rebuild the OTP's reputation with the court's judges. The next prosecutor will also have to bring several trials to conclusion, as well as conduct high-profile investigations in difficult environments, such as
In all these tasks, the next prosecutor will need to display political and diplomatic savvy. One pressing and thorny issue will be getting states to enforce arrest warrants, especially those against Bashir and the other Sudanese indictees. This will not be easy. Even key ICC supporters in
In such a fraught political environment, the next prosecutor will not make any headway using confrontational or triumphalist rhetoric. The OTP would do better to rethink its top-down approach in
The LRA leader Kony will continue to pose both a diplomatic and a military challenge. Since the warrants for the arrest of Kony and four of his lieutenants were issued in 2005, the Ugandan government has pushed the rebels out of northern
So far, the threat of ICC prosecutions has helped generate some useful discussion about justice at the national level. In places as diverse as
WITNESS FOR THE PROSECUTION
The new prosecutor will need to defend the ICC against charges that it brings too little accountability while standing in the way of peace and stability. Among other things, this will mean deploying the post's powers carefully, with a full awareness of their limits. At times, this could require considerable restraint: for instance, the OTP might be better off not seeking any warrants in the
Arbour herself once wrote that the international community's repeated failure to prevent atrocities "leaves criminal justice to meet the sometimes unrealistic expectations about the contribution that it can make to social peace and harmony, to the eradication of hatred, and to the reconciliation of previously warring factions." Substitute "the ICC prosecutor" for "criminal justice" in that sentence, and the difficulty of the job becomes clear. To be effective, the ICC's next chief prosecutor must share Arbour's healthy understanding of both the court's promise and its limitations.
DAVID KAYE is Executive Director of the International Human Rights Law Program at the University of California, Los Angeles, School of Law
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