The international criminal court is the newest would-be global institution to have been established by the big powers since 1945.footnote* Its Statute, agreed at a conference in Rome in 1998, was ratified by the minimum necessary sixty states in 2002; the Court opened its doors in The Hague the following summer. The icc raises both political questions—its relation to the major powers, above all the United States, and its function in world conflicts—and juridical ones. The history of international criminal law tends to be told as a teleological story of irreversible progress, in which the violence of cold state calculi gives way to a supra-political justice. Milestones along the way include the pre-1914 attempts to sanitize war between the European powers, when Swiss lawyers floated the idea of an international tribunal to back up the first Geneva and Hague Conventions, and the Versailles Treaty’s arraignment of the Kaiser for offences against ‘international morality and the sanctity of treaties’, never followed through. More salient have been the 1945–46 Nuremberg and Tokyo trials of selected German and Japanese officials; the ad hoc International Criminal Tribunal for Yugoslavia, set up in 1993 by the un Security Council to try individual Serbian leaders, and a much smaller number of Croatians and Bosniaks, for ‘crimes against humanity’; and the less celebrated International Criminal Tribunal for Rwanda, set up by the unsc in 1995. At the end of this narrative stands the icc, ‘the most dramatic marker yet in the long human struggle for accountability’.footnote1
The actual story is a less romantic affair, marked throughout by power politics. This essay will examine the context of the icc’s establishment, the motives of the states that set it up and the record of its operations to date, with the aim of providing a rough cadastral survey of the juridical and political terrain, as the basis for an initial assessment of the Court’s first decade.
Traditionally, international law has been understood as a horizontal framework, based on equal, sovereign states conforming to mutually agreed rules and treaties. States might breach international legal obligations, but criminal responsibility did not attach to the individuals involved. The post-war Nuremberg and Tokyo tribunals marked a major break with this conception: for the first time in modern history, individuals from the vanquished powers were to be held liable for infractions, before a tribunal constituted by their victors. The us overrode the hesitations of the other Allies, hammering out the legal framework for an International Military Tribunal to prosecute selected figures from the Axis powers. The setting up of the imt was announced on 8 August 1945, in the interlude between the atomic bombing of Hiroshima and that of Nagasaki; it issued its first indictments from the Palace of Justice at Nuremberg two months later. In Tokyo, General MacArthur himself proclaimed the establishment of the International Military Tribunal for the Far East, in January 1946, and proceeded to appoint its judges.
Whatever purposes were served by the Nuremberg and Tokyo tribunals, it is widely acknowledged that justice as such was not among them. The us Chief Justice Harlan Fiske Stone dismissed the Nuremberg trial as a ‘high-grade lynching party’ operating under a ‘false façade of legality’—‘too sanctimonious a fraud’ for his liking.footnote2 Many, Germans included, who were happy to see Nazi officials executed for what they had done nevertheless baulked at this type of court. The principles of valid law, impartiality and legally established jurisdiction were trampled underfoot, along with basic matters such as habeas corpus, the right to appeal and the admissibility of evidence. As with Stalin’s show trials, there was a distinct air of inevitability about the proceedings: ‘They will all hang’, Soviet prosecutor Andrei Vyshinsky famously toasted.footnote3 The indictments included newly minted crimes—‘war of aggression’, ‘crimes against humanity’—that breached the principle of nullum crimen, nulla poena sine lege (no crime, no punishment in the absence of law), amounting to ex post facto criminalization. The courts’ jurisdiction was established by fiat of the occupying powers, who appointed both prosecutors and judges, while granting themselves impunity. As the Indian judge Radhabinod Pal put it in his dissenting judgement at Tokyo, it appeared that ‘only a lost war is a crime’. The impunity of the victors shocked Hans Kelsen, perhaps the foremost proponent of an international criminal court at the time, who declared that Nuremberg could serve only as a negative example for international justice.footnote4
As for the principle of individual accountability, the novel claim of the Nuremberg and Tokyo tribunals, it was regularly over-ridden by the political and economic interests of the Allies. Not only Emperor Hirohito but the entire Imperial Family was shielded by MacArthur. ‘Repentance’—in practice: expression of willingness to serve the new masters—trumped accountability for most ex-Nazis. Nor could Nuremberg and Tokyo be said to serve a deterrent effect, since the overwhelming military superiority of the Allies had already provided that. Instead, it has been argued, the value of the Allies’ tribunals was not so much juridical as educational and expressive: international show trials, in other words. Yet expressive of what? The German writer and jurist Ronen Steinke has suggested that what international criminal courts can supply above all is an ‘authoritative confirmation of a certain narrative of “historical truth”’.footnote5 In this, Nuremberg was very successful. The us had been prepared to deal with Hitler’s Germany until December 1941, and with Vichy France until the end. In the late 1930s, Britain and France had calculated on backing the Nazi regime against the ussr. The very features that compromised Nuremberg and Tokyo in legal terms—ex post facto proclamation of ‘crimes against humanity’ and ‘war of aggression’; impunity of the victors—were highly effective in establishing a new narrative ‘truth’ of the Allies as defenders of peace and humanity.
The victors’ impunity and their identity as international peacekeepers were both inscribed in the us-drafted Charter of the United Nations, which restricted the right to determine the legality of wars to the five permanent, veto-wielding members of the un Security Council. The un Charter was approved in San Francisco in June 1945, just weeks before the establishment of the Nuremberg Tribunal; many thought that an international criminal court along similar lines would be a natural extension of Washington’s global institution-building. A model statute for an international court to try genocide was included in early drafts of the Convention for the Prevention and Punishment of the Crime of Genocide, which the un General Assembly adopted in 1948. The proposal was dropped from the final agreement, and the General Assembly instead tasked the un’s International Law Commission with the preparation of a draft statute for a permanent international criminal court and a code of crimes. The ilc submitted its blueprint for a new juridical institution six years later. But Washington would have little use for such a body during the Cold War, as the us perpetrated its own acts of aggression in Korea, the Dominican Republic, Vietnam, Laos, Cambodia, El Salvador, Grenada, Honduras, Nicaragua and elsewhere.
It was only with American victory in the Cold War that international criminal justice would re-emerge as a potent tool in the politics of the ‘new world order’. An initial proposal, floated by German Foreign Minister Hans-Dietrich Genscher in April 1991, in the wake of the first Gulf War, was to arraign Saddam Hussein before a ‘Nuremberg-type’ tribunal. The Bush Administration was cool about the idea; the Butcher of Baghdad would no doubt use the dock to spell out how close his links with Washington had been. But the German move was significant. In the decades after Nuremberg, German jurists had complained bitterly of the victors’ justice imposed there, deploring the infringement of nullum crimen and other principles of positive law. With the end of the Cold War, however, the Federal Republic of Germany was in a position to impose some victor’s justice of its own on the functionaries of the gdr. Special prosecutorial departments were established under the Länder Ministers of Justice; the first indictments were issued in September 1991—the accused included East German border guards, officials of the National Defence Council and members of the sed Politburo. Nearly 100,000 ex-gdr officials were investigated for state crimes over the course of the 1990s; around 500 were sentenced.footnote6
Once again, the need to establish a historical ‘truth’ was paramount. ‘We must succeed in delegitimizing the gdr regime’ explained Kohl’s Justice Minister Klaus Kinkel, a protegé of Genscher and soon to succeed him as Foreign Minister. The principle of nullum crimen would be waived, the Bundesverfassungsgericht confirmed.footnote7 Though the accused had broken no gdr laws, they should have acted according to the laws of humanity, as deduced from the formulations of the Universal Declaration of Human Rights. Though some denounced the spectacle, the de jure criminalization of the gdr regime helped to legitimize a social reconstruction of the eastern Länder, orchestrated from Bonn, that involved mass redundancies across all walks of life.
The break-up of Yugoslavia proved more fertile ground than Iraq for the application of international criminal justice. Kohl and Genscher’s ‘preventive recognition’ of Slovenian and Croatian secession from the Yugoslav Federation in 1991 was acclaimed as a triumph for a newly assertive German foreign policy. Kohl forced it through as European Community policy during an all-night Maastricht negotiating session in December 1991. ‘Preventive recognition’ was supposed to ensure a ceasefire between the breakaway republics and the federal forces, but it was proclaimed without ensuring any security for the large Serbian minority in Croatia and without consideration for its knock-on effects on an overall Yugoslav settlement. Washington, preoccupied with the Middle East and the dissolution of the Soviet Union, had opposed involvement in Yugoslavia. But Germany’s ‘getting out ahead’, as the State Department’s Lawrence Eagleburger put it, spurred the us to take a leading role, pushing for Bosnia–Herzegovina to secede—a prospect at which Germany had baulked. The Bosnian War erupted in April 1992, the day the West recognized the republic’s independence. Bosnian Serbs, inheriting artillery from the Yugoslav Army as it withdrew, aimed to secure their own zones of control; Tudjman’s forces planned for a greater Croatia.footnote8 By August 1992 the Western media was streaming images, inevitably selective, of Bosnian Serb atrocities and ‘concentration camps’. Kinkel, who had now succeeded Genscher as German Foreign Minister, took up a Human Rights Watch call for an international tribunal.footnote9 The incoming Clinton Administration would take a harder line on the Serbs: vetoing a Vance–Owen power-sharing proposal, implementing a no-fly zone and nato strikes on Bosnian Serb positions. Madeleine Albright saw an international criminal tribunal as fitting well with this plan.
In May 1993, un Security Council Resolution 808 established the International Criminal Tribunal for the former Yugoslavia, the first such tribunal since the 1940s, to investigate and prosecute ‘persons responsible for serious violations of international humanitarian law’. The icty installed itself in the Aegon Insurance building in The Hague, issuing its first indictments in November 1994. A close and lasting collaboration ensued between the Chief Prosecutor’s office and nato personnel—in effect, the Court’s police force. While Washington brokered a Croat–Muslim agreement to unite against the Bosnian Serbs, re-equipped the Croatian Army and monitored its brutal ethnic cleansing of at least 200,000 krajina Serbs, Chief Prosecutor Louise Arbour was happy to look the other way.footnote10 The narrative to be established would paint the complex tragedy of Yugoslavia as a case of ‘Serb aggression’, excluding consideration of the role that outside powers had played. When nato’s two-month bombardment of Yugoslavia began in 1999, Arbour’s response was to issue an indictment against Miloševic´. nato’s use of cluster bombs and its attacks on civilian trains, truck convoys, bridges and media centres fell within the jurisdictional competence of the Court. The Chief Prosecutor’s office dismissed the possibility of indictments against Western leaders after a perfunctory inquiry operating on the assumption that ‘nato countries’ press statements are generally reliable.’footnote11nato publicist Jamie Shea put it even more bluntly: ‘It was the nato countries who established the Tribunal, who fund it and support it on a daily basis.’footnote12 Here, once again, was a quintessential case of victors’ justice: big powers using post bellum trials—or, in the case of Miloševic´, in bello trials—to criminalize their defeated opponents, while their own conduct remains above judicial scrutiny.footnote13
Buoyed up by the launching of the icty, human-rights lobbies renewed their efforts for a permanent international tribunal. The un’s ilc had been tasked once again with drafting a statute for an international court; diplomatic interest in its work now grew.footnote14 Much of the preparatory work was underwritten by Washington, which wanted a central role for the un Security Council, with the us able to use its veto to prevent any investigation of American crimes. The Clinton Administration was well disposed to the ilc’s initial proposal for a court modelled on the Yugoslav and Rwandan tribunals, under strong Security Council control.footnote15 Acting on the ilc’s recommendation, the un General Assembly established a Preparatory Committee in 1996 to hammer out the details.
Meanwhile the ngo and international-justice lobby, which had grown exponentially with the ending of the Cold War, campaigned for an ‘independent’ court—a detached global body, in its own likeness. A coordinating group, Coalition for the International Criminal Court, was organized in 1995 by Amnesty, Human Rights Watch and two dozen others, winning funding from the Ford and MacArthur foundations. Its convenor opined that ‘un Security Council control would reduce the international criminal court to sham status, one which would dispense international criminal justice only to small and weak countries, never to violators in powerful nations.’footnote16 From the start of 1997, the ngos gained unexpected state support. Excluded from the un Security Council, Germany was nevertheless determined to play a central role. Kinkel appointed Hans-Peter Kaul as head of the German Foreign Ministry’s International Law Department and increased the German delegation to the Preparatory Committee in New York from two to seven.footnote17 Kaul’s team organized other non-unsc states with global ambitions, like Canada, and European Community minions, like the Netherlands, into a caucus that dubbed itself ‘the like-minded group’. Their goal was an ‘independent’ icc, in the sense that the Prosecutor would have proprio motu powers to launch investigations without instructions from the un Security Council—but not, as Kaul and Kinkel made clear to sceptical German Interior and Defence Ministry officials, an impartial one. German nationals, including Luftwaffe pilots in the skies over the Balkans, would be shielded from prosecution by the principle of complementarity: the icc would only investigate cases where the domestic judicial system was incapable of doing so.footnote18 The like-minded group used tactics long honed in the European Community: snaffling the chairmanship of key committees—the Preparatory Committee itself was chaired by a Dutch official, Adriaan Bos—roping in the support of small states, and using the psycho-dynamics of all-night sessions to manufacture agreement.
The icc’s Preparatory Committee moved with unusual alacrity for a un body. A ‘conference of plenipotentiaries’ was summoned to meet in Rome on 15 June 1998. There, 5,000 representatives from 160 states met at the Food and Agricultural Organization’s offices to negotiate what would become known as the Rome Statute. Joining the diplomats were representatives from hundreds of ngos, all eager to see a court take shape. Bos had fallen ill; his place as chair was taken by a Canadian diplomat, Philippe Kirsch. Many issues were delegated to working groups, but key questions—limits to the Court’s jurisdiction; the proprio motu powers of the Prosecutor and the role of the Security Council; definitions of core crimes—were handled by Kirsch in backroom negotiations.footnote19 The us argued strongly for limiting jurisdiction to the nationals of state parties—that is, countries which had signed and ratified the Statute; the icc’s member states, so to speak. (It was understood that Congress would not ratify the Statute in the foreseeable future, so the us considered itself a de facto non-member state.) David Scheffer, Legal Advisor to the State Department and Clinton’s point man at Rome, had threatened that the us would actively oppose the Court if it were granted universal jurisdiction. As to how the Court’s investigations should be set in motion, the us supported the original ilc proposal that ‘the Prosecutor should act only in cases referred either by a state party to the treaty or by the [Security] Council’, with the latter determining whether cases that pertained to its functions under Chapter vii of the un Charter—that is, international peace and security—should be considered by the Court.footnote20 Washington was opposed to the prosecutor having proprio motu powers.
Rome and after
The draft statute prepared by Bos’s Committee left over 1,700 square-bracketed items to be resolved. But Kaul had gone through the text, bolding all the provisions that had the like-minded group’s support: ‘I sent this version of the draft statute to the German un mission in New York. We duplicated it and bound it and gave it to all like-minded delegations. We told them, you just have to look at the bolded text.’footnote21 Scheffer, by contrast, complained of having to pursue ‘time-consuming bilateral diplomacy’, while in the final forty-eight hours of the Conference: ‘The treaty text was subjected to a mysterious, closed-door and exclusionary process of revision by a small number of delegates, mostly from the like-minded group, who cut deals to attract certain wavering governments into supporting a text that was produced at 2am on the final day of the conference, July 17.’footnote22
Scheffer was furious that, under Article 12 of the Statute, the Court’s jurisdiction would extend to crimes committed by non-member-state nationals on a member state’s territory, theoretically leaving Americans vulnerable to prosecution. Assurances from German and Canadian delegates that us citizens would be protected by the unsc’s ability to defer any investigation indefinitely, and by the principle of complementarity, cut no ice. Scheffer demanded a limitation on the Court’s jurisdiction: indictment should be dependent on the agreement of the accused’s home state. India, by contrast, put forward a last-minute amendment that the use of nuclear, chemical and biological weapons be defined as a war crime and that the icc should be entirely independent of the Security Council. With agreement about to be scuttled, the two motions were deferred, and ‘this “take it or leave it” text’, as Scheffer put it, ‘was rushed to adoption hours later on the evening of July 17 without debate.’footnote23 The final vote registered 120 for adoption, seven against—the us, Israel, China, Cuba, Syria, Iraq, Yemen—and 21 abstentions.
At first sight, the outcome at Rome seems a striking contrast with the conference at San Francisco half a century before, when Washington had orchestrated international agreement for a United Nations designed as a handmaiden of us global strategy.footnote24 If American power was undiminished, its attention to dictating institutional blueprints appeared to have declined. Much has been made of American opposition to the icc, and there has been no shortage of broadsides from the Beltway; but it would be a mistake to see the us pitched against an international court per se. The us had strongly supported the ilc’s initial draft, which envisaged the Court as an appendage of the un Security Council. As Scheffer stressed: ‘The United States was not opposed. In fact we were strong supporters of the Court from the very beginning. The question was what kind of court would it be? Our position was that we wanted this Court, but we wanted the Security Council to be responsible for triggering the cases.’footnote25 All the major states had supported the ilc draft in 1994, and Washington had every reason to hope that its realization would be smooth sailing. Had it suspected that the Germans and Canadians would start pushing for a bigger role for themselves, the us might have kept the statute-drafting process more tightly under the control of the un Secretary-General, instead of opening it to un General Assembly processes under the rule of one state, one vote.
As it was, the German-led ‘like-minded group’ campaign from 1997 onwards—coinciding with the Asian financial crisis, the blockade of Iraq and the simmering situation in the Balkans—caught the Clinton Administration on the back foot. While Scheffer struggled to rally his P5 allies at Rome, final instructions from Washington did not arrive until four weeks into the five-week conference.footnote26 (Clinton was perhaps more preoccupied with the looming Monica Lewinsky scandal.) Nevertheless, the us sent a large delegation to participate in the post-Rome Preparatory Commission which would take charge of the Court’s operational details. In reality, as examination of the Rome Statute shows, Scheffer and his colleagues had little to complain of in the final version.
Under the Statute’s terms, the icc would enjoy jurisdiction over four categories of crime, each of them ill-defined: genocide, crimes against humanity, war crimes and ‘aggression’—in the words of the Statute’s Preamble, the ‘most serious crimes of concern to the international community as a whole’.footnote27 All states ratifying the Statute would gain a seat and a vote in the Assembly of State Parties, which would be responsible for choosing the Court’s Prosecutor and eighteen judges, who would supervise investigations, oversee trials and rule on appeals. (Though the judges had to be nationals of state parties, the Prosecutor did not, leaving the position open to an American.footnote28) The Prosecutor, appointed for a 9-year, non-renewable term, would review information about possible crimes, conduct investigations, request arrest warrants and prosecute those on trial. Three mechanisms could trigger an investigation: a member state could refer a situation to the Prosecutor; the un Security Council could do the same; or the Prosecutor could act proprio motu, though a panel of icc judges would have to review his or her decision to do so, and the Security Council would be able to suspend the investigation for a year, under Article 16, renewable for subsequent 12-month periods without limit. The Court would enjoy jurisdiction over crimes committed on the territory of a member state, and/or by a national of a member state; in the case of a un Security Council referral, the Court would acquire jurisdiction even if neither the territorial nor the nationality conditions were met. The Court would be ‘complementary to national criminal jurisdictions’, understood as meaning that it would only investigate crimes if national courts could not do so, in the opinion of the icc judges. It would only consider cases deemed to be ‘of sufficient gravity’.
The passage of the Statute in Rome was greeted with wild displays of enthusiasm: ‘diplomats abandoned themselves to cheers and chants, tears and embraces, rhythmic stomping and applause’.footnote29 Within a year, many of the same figures would be cheering on the nato bombardment of Yugoslavia. But the emotive atmosphere in favour of humanitarian warfare in the late 1990s was very useful in building support for icc ratification; there was no contradiction in the eyes of the military humanists between the moral use of force by the ‘international community’ and its criminalization if resorted to by outsiders. In the final months of the Clinton Administration, Scheffer helped mobilize Elie Wiesel, Nelson Mandela and Jimmy Carter in a campaign for the us to sign, if not ratify, the Statute, and thus to ‘reaffirm America’s inspiring role as leader of the free world in its search for peace and justice’, as supporters put it in the New York Times.footnote30 On his last evening in the White House Clinton instructed Scheffer, now us Ambassador for War Crimes, to sign the Rome Statute, allowing the us to play a role in selecting judges and shaping the future of the Court. But it would not be ratified by Congress until ‘significant flaws’ were remedied, Clinton announced; the us remained a non-member of the icc.footnote31 Nevertheless, sixty states had ratified by April 2002, an unprecedentedly swift passage by the standards of international law. The Statute entered into force two months later, on 1 July 2002.
Setting up shop
On 11 March 2003, international luminaries gathered in the Ridderzaal, the Netherlands’ medieval parliament in The Hague, to celebrate the inauguration of the new International Criminal Court. Although it was rumoured at Rome that Lyon, Nuremberg or the Italian capital itself might play host to it, ultimately the Netherlands was the only state to extend an offer.footnote32 The Hague was already home to various international legal tribunals—the International Court of Justice, or World Court, which hears disputes between states; the icty; the Appeals Chamber of the icty and ictr—and the icc was provided with a modern, 15-storey office block on the outskirts of the city, former home of the Dutch postal service. Two-thirds of the Court’s funding was supplied by Europe and Canada, with Germany the largest provider at 20 per cent. The like-minded group retained its grip on appointments. Philippe Kirsch became President of the Court, Hans-Peter Kaul a judge in the crucial Pre-Trial Chamber, ruling on investigations in Uganda, the Democratic Republic of Congo, Sudan, the Central African Republic, Kenya, Côte d’Ivoire, Libya and Mali; Kaul has also been the President’s representative on the icc Permanent Premises Committee, charged with finding the Court a more luxurious home. At the opening ceremony in the Ridderzaal, Queen Beatrix of the Netherlands greeted the gathered officials and Prince Zeid of Jordan, the first President of the Assembly of States Parties, opined about the Court’s role in maintaining international peace and security, and furthering the rule of law. Here, in The Hague, was history’s telos. Amid champagne and smoked-salmon canapés, no one mentioned the impending invasion of Iraq.
In fact, the campaign to reassure Washington that the icc was in safe hands had begun the moment the Statute was passed. Kirsch bent over backwards to praise the us delegation to the post-Rome Preparatory Commission for its constructive contributions.footnote33 Fears that the icc might become ‘politicized’—code for the investigation of American war crimes—were repeatedly rejected as ‘unwarranted’ and ‘far-fetched’, a most ‘unlikely eventuality’, against which the Rome Statute had plentiful ‘safeguards’, ‘checks’ and ‘restraints’.footnote34 The Bush Administration, gearing up after 9/11 for the invasion of Afghanistan, and with sights already set on Iraq, demanded harder guarantees. Article 98 of the Rome Statute provided for an exception to the member states’ obligation to surrender an accused to the Court, if doing so would breach an existing agreement with another state. This was implicit recognition of the Status of Forces and Host State agreements which provide immunity for us (and other) military forces operating overseas. As soon as the Rome Statute entered into effect, the us announced its intention to enter into ‘bilateral’ Article 98 agreements: each party would agree not to hand over any nationals to the icc. Over the next four years, agreements were signed with 102 countries, starting with Romania; of the 54 states that refused, nineteen saw a reduction in their us economic aid.
Blair followed suit, the uk drafting a Status of Forces agreement with occupied Afghanistan which specified that no nato troops would be surrendered to an international tribunal. Bush also ‘unsigned’ the Statute in May 2002, to the delight of John Bolton, his Undersecretary of State for Arms Control; Israel did so three months later.footnote35 The 2002 American Service Members’ Protection Act threatened to limit us participation in un peacekeeping operations, unless the Americans involved were granted immunity from any potential icc prosecution; it also authorized us Marines to ‘storm the beaches of Holland to rescue any American citizen who might languish in icc custody’.footnote36 The un Security Council quickly bowed to Bush’s demands: American peacekeepers would be immune from prosecution for one year, a boon subsequently renewed in 2003.
Bush need not have worried. As Luis Moreno Ocampo, the incoming icc Prosecutor, hastened to assure a us official in March 2003, he ‘could not imagine launching a case against a us citizen’.footnote37 Ocampo had been the Clinton Administration’s initial choice for chief prosecutor at the icty in 1993 and only missed out when his own country, Argentina, refused to endorse him. His application for the icc position was co-drafted by Samantha Power. Born in 1952 to a once wealthy family, he kept his head down during the dictatorship, focusing on his studies at the University of Buenos Aires Law School while tens of thousands from his generation were disappeared in the Junta’s dirty war. He became a prosecutor in 1984, a year after the restoration of democracy under Raúl Alfonsín, and in 1985 gained his first taste for fame as a young assistant to the chief prosecutor, Julio César Strassera, in the trials of the Junta for kidnap, torture and murder. Ocampo has cultivated a reputation as the man who put the Junta behind bars, but even at the time Strassera complained about his assistant’s penchant for the media spotlight, while the dictatorship’s victims distrusted him: ‘No survivor wanted to talk to him’, according to one.footnote38 In the 1990s Ocampo moved into private practice, also working as a World Bank consultant on corruption and appearing in the reality tv show Fórum, la corte del pueblo, Argentina’s answer to Judge Judy. In 2002 Ocampo was a visiting professor at Harvard Law School. Once he and Power had submitted his application for the position of icc prosecutor, he flew to Europe at his own expense to present his credentials to the Court’s paymasters in Berlin, Paris and London.footnote39
Ocampo was formally appointed in April 2003, within weeks of the unsanctioned us–uk invasion of Iraq and the usaf’s use of cluster bombs there. Iraq was not an icc member state, so the Court had no jurisdiction over its territory; but it did have jurisdiction over war crimes and crimes against humanity committed or directed by nationals of member states Britain and Australia. The Athens Bar Association submitted a call for an investigation of acts in Iraq ordered by Blair, Geoff Hoon and Jack Straw.footnote40 Ignoring the whole question of the Iraq war, Ocampo’s first statement as Prosecutor suggested that the Court might enjoy a Zen-like inactivity: its efficiency should not be measured by the number of cases it took up; on the contrary, ‘the absence of trials led by this court as a consequence of the regular functioning of national institutions would be its major success.’footnote41 The ngo lobby was affronted by this do-nothing approach; the Prosecutor had to do something. The Office of the Prosecutor began scanning the world for sites of violence other than Afghanistan and Iraq. At his July 2003 press conference, Ocampo announced that he would be examining the situation in eastern Congo.
Before the Prosecutor could turn up anything in the Congo, however, the Ugandan President Yoweri Museveni submitted a request for an investigation of crimes against humanity in his own country. Since seizing power in 1986, Museveni and his forces had been fighting a counterinsurgency in the northern jungles of Uganda. Initially, ‘Operation North’ had pitted government forces against rebel groups associated with deposed leaders Milton Obote and Lutwa Okello, with attendant atrocities and civilian massacres. In 1996 the counterinsurgency entered a new phase: ‘a government-directed campaign of murder, intimidation, bombing, and burning of whole villages to drive the rural population into idp camps, complete with enclosures guarded by soldiers’.footnote42 By the mid-1990s much of the rural population of the three Acholi districts were interned—the camp population had reached almost a million by 2002. This, in turn, created the conditions for the rise of new militias, most famously the Lord’s Resistance Army led by Joseph Kony, with its proclaimed goal of overthrowing Museveni and creating a state based on the Ten Commandments. The lra did not shy away from its own atrocities and was known for its forced recruitment of under-age soldiers.
The drafters of the Rome Statute had assumed that states would refer crimes occurring in other states, so Museveni’s referral came as some surprise. Notably, it asked the Prosecutor to investigate ‘the situation concerning the Lord’s Resistance Army’. The Statute speaks of the referral of ‘situations’, rather than cases or specific crimes, in order to prevent the use of the Court to ‘settle scores’, as Kirsch had noted.footnote43 Yet this was precisely what Museveni appeared to be doing: instrumentalizing the court for his own political purposes. Officially, Ocampo chose to interpret Uganda’s referral as encompassing ‘all crimes committed in Northern Uganda’. Unofficially, commentators suggest, the Prosecutor had a ‘tacit, if not an explicit, understanding with the Ugandan authorities’ that he would only prosecute rebel leaders.footnote44 By July 2004, Ocampo had decided there was a reasonable basis for an investigation, announcing that he had found evidence of systematic attacks by the lra against the civilian population, including sexual violence, torture, under-age conscription and forced displacement. He was curiously silent on atrocities committed by government forces which, needless to say, continued. The following year, the Prosecutor applied to the icc’s Pre-Trial Chamber for five arrest warrants for leaders of the lra, including Kony. However, the Office of the Prosecutor had no means to enforce the warrants and Kony remained at large.footnote45
By the summer of 2004, the rising death toll in Iraq and images of us torture at Abu Ghraib were dominating world headlines. Another narrative was badly needed. In July 2004 the us Holocaust Memorial Museum and American Jewish World Service organized a Darfur Emergency Summit in New York, claiming the Sudanese government was pursuing a genocidal campaign against rebels in Darfur.footnote46 Inter-tribal violence in the westernmost province of Sudan had long been simmering, its roots in a colonial legacy of tribal land parcelment, exacerbated by four decades of drought and desertification, which pitched landed against landless. In 2003, an uprising there had provoked a brutal counterinsurgency by the Bashir government; now, Muslims were the aggressors. In September 2004 Colin Powell called upon the Security Council to take action against what he described as genocide in Darfur. A un Commission chaired by Antonio Cassese, first president of the icty, was dispatched to investigate the situation. Cassese reported to the Security Council in January 2005 that there was no evidence that the Sudanese government had pursued a policy of genocide, but that violence by both government and rebel forces might amount to ‘crimes against humanity’. The Commission recommended that Darfur be referred to the icc for prosecutions.footnote47
The Bush Administration was still formally opposed to the Court, but Bush himself seemed to care more about Darfur than about the icc. When the Security Council voted to refer the situation in Darfur to the icc on 31 March 2005, the us abstained rather than using its veto. The un Security Council referral had a dramatic effect. According to Ocampo: ‘Darfur was like a different dimension. Suddenly we were connected with the Security Council—it was a totally different game!’footnote48 Within a year, the State Department’s legal advisor John Bellinger was opining that the icc did have ‘a role to play in the overall system of international justice’; the us and the Court ought to be pursuing ‘common goals’ rather than indulging in ‘divisiveness’.footnote49 Washington’s reconciliation with the icc was underway.
Ocampo’s excitement at being contacted by the unsc did not translate into any very energetic pursuit of the facts on the ground in western Sudan, where he claimed that the security situation made a judicial investigation impossible. Worried that he might be letting the side down on such an important referral, Hans-Peter Kaul and his fellow judges in the Pre-Trial Chamber took the unprecedented step of asking for an outside opinion. Cassese, chair of the 2005 un inquiry, and Louise Arbour, now un High Commissioner for Human Rights, were both invited to submit amicus curiae reports, which were duly damning. Ocampo was exaggerating the security problems, they said: Cassese had interviewed numerous witnesses in both Darfur and Khartoum, whereas the Prosecutor had ‘got no further than the Hilton Hotel’, as his Senior Trial Attorney put it.footnote50 Outraged, Ocampo responded that his investigation was proceeding very successfully based on evidence found outside Sudan. He ramped up the rhetoric, telling the un Security Council in December 2007 that Bashir had personally planned and put into operation a two-stage genocide. In July 2008 he applied for a warrant against Bashir for both genocide and crimes against humanity. ‘Bashir does not need gas chambers, bullets or machetes’, he announced. ‘This is genocide.’footnote51
The Pre-Trial Chamber at first demurred: under the Rome Statute, in order to establish the crime of genocide it is necessary to show that the perpetrator acted with intent to destroy the targeted group; Ocampo could provide no direct evidence of Bashir’s alleged genocidal intent. Nonetheless, the Pre-Trial Chamber saw fit to reverse its decision on appeal and the icc issued a warrant for Bashir on the charge of genocide in July 2010. Ocampo took to the Guardian’s pages to declare ‘The genocide is not over’—although monthly mortality levels in Darfur had dropped significantly from the 2004 peak and by 2006 were in the low hundreds—and to claim the Court had found that ‘Bashir’s forces have raped on a mass scale in Darfur’ and that Bashir was inflicting conditions on ethnic groups there ‘calculated to bring about their physical destruction’.footnote52 The Court, of course, had found no such things, and the integrity of any future trial must be called into question by such brash disregard for the Prosecutor’s judicial duty of impartiality during the investigative phase. However, as in Uganda, big-power political interests proved more fluid than international justice. ‘Save Darfur’ faded from the headlines, along with Iraq. us officials continued talks with the Khartoum government about the independence of South Sudan, a pet American project. By 2010 Obama’s Special Envoy to Sudan was suggesting that the time was not right for accountability and international justice.footnote53
Meanwhile in 2006, the icc had succeeded in taking its first prisoner into custody. Joseph Kabila’s government in the Democratic Republic of the Congo had referred its own territory to the Court in 2004, apparently under European pressure; the second state referral to the icc after Museveni’s.footnote54 The Prosecutor had already decided to focus his investigation on the northeastern region of Ituri—perhaps, commentators have suggested, because there was less evidence to connect Kabila to the atrocities there.footnote55 Gold-rich Ituri had been roiled by the spill-over from Rwanda; the entry of Rwandan and Ugandan forces had inflamed, and exploited, long-running, partly tribal conflicts over land. Multiple local militia groups fought for control, allying with or against Kabila’s, Kagame’s and Museveni’s soldiers, or those of the un peacekeeping force, monuc. One of the militia leaders was Thomas Lubanga Dyilo, scion of a local family and a psychology graduate, who had earlier been allied with Uganda but split in 2001 to set up his own Union des Patriotes Congolais. In 2003 Lubanga moved to Kinshasa to register the upc as a political party under the un-brokered power-sharing accord that would lead to the drc’s first general election in 2006. But in February 2005, monuc forces in Ituri came under attack from militia fighters. Kabila was under international pressure to react and duly arrested Lubanga, detaining him at first in one of Kinshasa’s luxury hotels.
Ocampo’s investigation into the situation in Ituri had been proceeding slowly; he had no evidence of Lubanga ordering violent crimes, but thought he could mount a case against him for recruiting under-age soldiers. A warrant for his arrest was issued by the icc in February 2006, and Lubanga was swiftly rendered to The Hague in a French military plane. He came before the Pre-Trial Chamber on 20 March 2006, the first defendant ever to appear before the icc. The fact that the sole charge against him was the recruitment of under-15s surprised many: Congolese militia forces regularly engaged in rape, and Lubanga’s were no exception. The Rome Statute was the first international treaty to recognize and define such acts as war crimes and crimes against humanity, not simply as acts collateral to war. Congolese human rights and women’s groups warned that the charges risked ‘offending the victims and strengthening the growing mistrust in the work of the International Criminal Court in the drc and in the work of the Prosecutor specifically.’footnote56
Further concerns arose about the prosecutor’s handling of the case when it was revealed, just days before the expected start of the trial, that Ocampo had refused to disclose exculpatory evidence to the defence. The Prosecutor had been supplied with thousands of documents by the un Mission in Congo—weekly situation reports, child protection reports, etc—relating to the Ituri region. monuc officials had assumed that these would merely provide the ‘signposts’ for the Prosecutor’s further investigation, and they were handed over on the expectation of confidentiality. Detailed investigation was not Ocampo’s speciality, however, and his case leaned heavily on the monuc reports. A series of stand-offs ensued between the Prosecutor and the icc judges, who at one point halted the proceedings and ordered Lubanga’s immediate release. The trial eventually got underway in January 2009, but was halted again after defence witnesses testified that intermediaries working for the Prosecutor’s investigators had coached and bribed witnesses to claim that they had served as under-age soldiers. Finally, on 14 March 2012, some six years after his initial transfer to The Hague, Lubanga was found guilty of conscripting under-15s and sentenced to fourteen years of imprisonment. For a Court set up to try only ‘the gravest of crimes’, this was setting the bar low.footnote57
Another defendant charged as a result of the Prosecutor’s investigation into the ‘Situation in the drc’ has already been acquitted. Mathieu Ngudjolo, leader of a militia that had clashed with Lubanga’s forces in the Ituri village of Bogoro in 2003, was charged with crimes against humanity arising from the fighting. Ngudjolo denied ordering the attack, saying he only heard of it days later. As in Lubanga’s case, the Prosecutor’s investigation was found wanting. His first forensic investigation in Bogoro was conducted only in 2009, six years after the event, greatly diminishing any probative value. Much of the evidence consisted of reports by monuc or ngo officials. Delivering the acquittal in December 2012, presiding judge Bruno Cotte described the evidence as ‘too contradictory and too hazy’.footnote58 One might have expected that the Court’s first acquittal would be greeted as an indication of the judges’ independence, a sign that theirs was not a hanging court. Yet the reaction from the ciccngos was outrage. Human Rights Watch announced that the judgement left the victims of Bogoro ‘without justice for their suffering’; other groups spoke of the ‘abandonment of victims’. Organizations once known for championing the rights of defendants to fair trials now lamented judges’ failure to convict when there was patently insufficient evidence to do so.
By the end of the second Bush Administration, the icc’s selection of situations to investigate was starting to tell its own story. The Prosecutor had closed the file on Iraq in February 2006, just as the insurgency was reaching its height, announcing that, if war crimes had been committed there, they did not reach the required ‘gravity’ threshold. The Court also turned a blind eye to Afghanistan, a member state, where the Prosecutor could have used his hard-won proprio motu authority; timid requests for information were simply ignored by the nato powers occupying the country. Israel’s ferocious 3-week attack on Gaza, launched in late December 2008, threatened to give the icc more of a headache. Days after Operation Cast Lead came to an end in January 2009, the Palestinian Authority Justice Minister flew to The Hague and submitted a declaration to the icc that granted the Court jurisdiction over crimes on Palestinian territory since 1 July 2002.footnote59 In addition, the un Fact-Finding Mission’s report on the Gaza conflict, published in September 2009, had found evidence of widespread war crimes and crimes against humanity, describing Operation Cast Lead as ‘a deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population, radically diminish its local economic capacity both to work and to provide for itself, and to force upon it an ever increasing sense of dependency and vulnerability.’footnote60
The Mission recommended the un Human Rights Council to submit its Report to the icc Prosecutor and proposed that the Security Council should, if need be, refer the situation in Gaza to the icc. Naturally the us would have blocked any such unsc action, and nothing came of either recommendation. Secretary of State Condoleezza Rice issued a warning to the Court: ‘How the icc handles issues concerning the Goldstone Report will be perceived by many in the us as a test for the icc.’footnote61 The Office of the Prosecutor rose to the occasion. Over the next three years, a great show was made of undertaking a serious legal analysis to determine whether the Palestinian territories would constitute a state for the purposes of Article 12. Submissions were invited from ngos, scholars and practitioners, and there was further correspondence with the Palestinian Authority. Finally, just weeks before the end of his term in 2012, Ocampo announced his findings: it was not for him to decide.footnote62
With the advent of the Obama Administration, international-justice proponents came to occupy key cabinet positions. Samantha Power was on the National Security Council, in charge of multilateral affairs. At the State Department, Hillary Clinton expressed her regret that the us had not joined the Court.footnote63 She appointed Harold Koh (former Dean of Yale Law School) as Legal Advisor, Anne-Marie Slaughter as Director of Policy Planning and Stephen Rapp as Ambassador at Large for war crimes. icc officials started receiving invitations to the State Department and White House. By March 2009 the Prosecutor was giving distinctly political briefings to us diplomats, advising Susan Rice, Obama’s hawkish Ambassador to the un, on how to reassure China about regime change in Sudan.footnote64 Though the Prosecutor’s office had become mired in bureaucratic infighting, amid accusations of sexual harassment—Ocampo sacked the whistleblower, who sued successfully for wrongful dismissal—mainstream media coverage glowed. Ocampo would be selected as one of The Atlantic magazine’s ‘Brave Thinkers’—people who ‘risk reputations, fortunes and lives in pursuit of big ideas’—along with Steve Jobs, Chris Christie et al.footnote65 Washington returned to its observer’s seat at the icc’s Assembly of States Parties in November 2009 and played a central role in preparations for the Review Conference the following summer.
In June 2010, asp representatives gathered in Kampala, Uganda for a stocktaking of the Court’s first seven years. Ban Ki-Moon welcomed the delegates on the terrace of a 5-star resort overlooking Lake Victoria. The American delegation led by Koh was by far the largest: thirty negotiators, compared to fifteen from the Netherlands, eleven from Germany, ten from the uk and seven from France. Koh made it clear that the us was not planning to be outvoted again. The main debate centred on the crime of aggression, left undefined at Rome. After hard negotiations, Koh was exultant at the final compromise: as long as the us remained a non-signatory, ‘no us national can be prosecuted for aggression.’footnote66 The Kampala Conference defined an act of aggression as ‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.’ A crime of aggression was likewise defined as ‘the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.’footnote67 The tripartite caveat—character and gravity and scale—allowed for a good deal of flexibility and legal indeterminacy.
More importantly, the Court’s jurisdiction over the crime of aggression was strictly limited. In cases of a state referral, or when the Prosecutor wishes to proceed proprio motu, the Court has no jurisdiction over aggression when committed by a non-State Party’s nationals or on its territory—precisely the restrictive approach to jurisdiction advocated by the us in Rome in 1998.footnote68 Only when the Security Council refers a case of alleged aggression to the Court may the Prosecutor proceed with an investigation as with other Statute crimes. Moreover, member states may choose to opt out of the Court’s jurisdiction over the crime of aggression altogether. The Kampala amendments also require ratification or acceptance by at least thirty States Parties, as well as a decision by a two-thirds majority of the asp to activate the Court’s jurisdiction, which cannot take place until 1 January 2017. So far only seven states have ratified.footnote69
Détente between the us and icc has given way to a warm rapprochement. The pattern first established in the Balkans in the 1990s has re-emerged: Western military intervention is accompanied by the justificatory apparatus of icc juridical intervention. So it went with nato’s latest outing in Libya. On 26 February 2011, barely a week after the first anti-Gaddafi demonstration in Tripoli, the un Security Council voted to refer the situation in Libya to the icc. Within days, Ocampo held a press conference announcing that he was putting the Libyan Foreign Minister and the head of the Intelligence Service ‘on notice’ that they would be held criminally responsible for the acts of those under their command.footnote70 The Court’s Public Counsel for the Defence felt obliged to issue a reprimand: the publication of names of suspects at such an early stage contravened the presumption of innocence and, given the tumultuous nature of events on the ground in Libya, it was questionable whether the investigation could have proceeded to the extent that disclosing names of potential suspects could be ‘either warranted or acceptable’. The objective of deterrence would have been better served by clearly delineating the types of action that could warrant prosecution.footnote71
Ocampo pushed on regardless, applying to the Pre-Trial Chamber on 16 May 2011 for arrest warrants for Gaddafi, his son Saif Al-Islam and military intelligence chief Abdullah Al-Senussi. In June, as the seven-month nato bombardment to ‘protect’ Libya’s citizens dragged on, the Prosecutor was again in the news, claiming that he had evidence of Libya acquiring ‘containers’ of ‘Viagra-type medicaments’, with Gaddafi personally ordering the rape of hundreds of women.footnote72 Pfizer, the manufacturer of Viagra, felt compelled to issue a statement that the company had ‘stopped shipping all products to Libya in February, when sanctions were implemented’. It emerged that Ocampo was simply parroting claims made by Susan Rice in a closed Security Council meeting two months earlier, when the us was seeking to step up the military intervention. The accusation was quietly dropped. Proceedings against Saif Gaddafi and Senussi were delayed when the Libyan authorities insisted they would pursue their own prosecutions at home. In May 2013, the icc’s Pre-Trial Chamber ruled that Libya was unable to carry out the prosecution of Saif and his case should proceed in The Hague, while in October it ruled, by way of contrast, that Libya had demonstrated a will and ability to prosecute Senussi. Both decisions have been appealed. But once again, the caravanserai of the international community has moved on.
Ocampo’s nine-year term as Prosecutor of the icc came to an end in June 2012. His successor is Fatou Bensouda, a Deputy Prosecutor at the Court who had managed, where so many colleagues had failed, to maintain a working relationship with Ocampo. Born in the Gambia in 1961, Bensouda studied law in Lagos, returning to her native country in 1987 to work in the public prosecution service. In 1998 she was appointed Justice Minister and Attorney General by the ex-military autocrat Yahya Jammeh, quitting two years later after apparently falling out with him. From 2001 to 2004 she worked as a trial lawyer at the ictr in Arusha. The appointment of an African Prosecutor is obviously helpful at a time when the Court faces growing charges of racism and anti-African bias. Where Moreno Ocampo was brash, Bensouda is cautious and considered. She describes herself as ‘a victim-oriented person’ and has the support of the ngo lobby; former colleagues say she is ‘less gifted as a trial lawyer and more appreciated for her affable personality and organizational skills’.footnote73 But there is little reason to expect any change in substance. Bensouda has said she views the icc as a ‘tool’ of the Responsibility to Protect doctrine, the familiar ideological cloak for North Atlantic warfare. The Court’s annual budget has grown from an initial €30 million in 2002 to over €100 million. Japan is now the top payer, at nearly €20 million, with Germany second at €11.5 million. The Court will soon be moving to the upmarket seaside suburb of Scheveningen. Its current premises, according to its officials, ‘lack the dignity of a court building’—the image ‘does not correspond with the idea of a permanent universal court’.footnote74 Construction has started and the Court should move into its new home by 2016. According to its architects the design, a huge glass block, is meant to convey eminence and authority as well as trust and hope.
Africa in the dock?
In July 2012 the Office of the Prosecutor opened an investigation into the situation in Mali, its eighth formal investigation—and the eighth in Africa.footnote75 The Court’s myopic focus has caused anger on the continent. That military intervention by former colonial powers has been followed, almost de jure, by juridical intervention by the icc, leaves Africans understandably suspicious. At the African Union summit in Addis Ababa in May 2013, Ethiopia’s Prime Minister Hailemariam Desalegn accused the icc of ‘hunting’ Africans because of their race.footnote76 The notion that international criminal law is a neo-colonial imposition is no longer limited to critical international legal theorists; it is now heard most loudly from the post-colonial elites of Addis Ababa and other African capitals. The au adopted a resolution calling on African states not to cooperate with the icc when the Security Council refused to defer proceedings against Bashir. The au has also demanded a halt to proceedings against Kenyan President Uhuru Kenyatta and his deputy William Ruto, accused of fuelling violence following the contested 2007 election, and has deliberated upon the potential mass withdrawal of African member states.footnote77
That the Court’s investigations have coincided with imperial concerns is apparent; that they are motivated by simple racism is less evident, although this is not to downplay the court’s role in reproducing a longstanding dynamic of racialization in international law.footnote78 On the Court’s record, crimes against humanity and war crimes are acts committed by non-Westerners. The Hague’s courtrooms replicate a historical pattern in which, as Makau Mutua puts it, ‘morality comes from the West as a civilizing agent against lower forms of civilization’.footnote79 Images of a white-suited prosecutor stepping from his helicopter onto the hot plains of Africa—one of Ocampo’s many unfortunate penchants—reproduce, like the very idiom of international criminal law and humanitarianism, the racialized metaphor of savages, victims and saviours: the violence of international crimes lies outside the civilized West; its victims are powerless, in need of saving by nato intervention or us-trained human-rights lawyers.
The doctrine of ‘complementarity’, too, affirms a sharp division between Western countries, with their developed judicial architecture—which, as the German representative gloated, will never be found unable to carry out a prosecution—and the rest of the world, where the icc may more readily make out a case for a judicial system’s ineffectiveness. In this respect, the Court appears to reproduce the colonial international law of the 19th century, underpinned by a distinction between civilized and uncivilized states.footnote80 This understanding of the icc’s role emerged relatively late in the negotiating process. The 1994 ilc draft had envisaged a court much like the ad hoc tribunals: if the Court’s prosecutor chose to proceed with a case, domestic courts could not pre-empt this by offering to do the job themselves.footnote81 Under the Prosecutorial Strategy developed by Moreno Ocampo, complementarity has taken on central importance: ‘In this design, intervention by the Office must be exceptional—it will only step in when States fail to conduct investigations and prosecutions, or where they purport to do so but in reality are unwilling or unable to genuinely carry out proceedings.’footnote82 In theory, the principle encourages the development of national judicial institutions. In practice, it provides the Prosecutor with significant discretion in deciding whether and when to pursue prosecutions, and has often been abused. The Ituri region’s judicial system was fully functional when The Hague took custody of Lubanga, courtesy of Kabila’s security forces. Similarly, when the Prosecutor received Uganda’s referral, its judiciary was ‘one of the most proficient and robust in Africa’.footnote83 The only reason Uganda was ‘unable’ to prosecute was its inability to secure custody of the lra leaders; but, as many commentators have pointed out, in this respect Uganda was no worse off than the Court itself.footnote84 Rather, the icc decided that this would be a non-controversial way to get a prisoner in its dock.
Even within its narrow African horizons, the Court has dispensed a selective justice. In Uganda, only the leadership of the lra faces prosecution while Museveni, a Western ally, enjoys impunity. In Sudan, a single-minded campaign to indict Bashir has awarded rebel movements an undeserved imprimatur and undermined efforts at a lasting peace. In the drc, the court has prosecuted small-fry militia leaders while turning a blind eye to the ravages of the Kabila government’s forces and the Ugandan and Rwandan armies that have plundered the country for decades. More damagingly, perhaps, the icc’s interventions throw up ideological blinders to the nature of mass violence in the contemporary world order. The framing of war crimes and crimes against humanity as the product of pious individuals or crude savagery obfuscates the structures and social relations out of which such crimes arise. Instances of mass violence are understood as random events, abstracted from the historical and socio-economic contexts that have shaped them. This is particularly glaring in the case of the Congo, where Western powers oversaw the murder of Patrice Lumumba, the country’s first elected leader after independence, then for thirty years propped up the murderous and plutocratic dictatorship of Mobutu, rather than see the country tilt to the left during the Cold War. Now the sons and daughters of those Western governments deem themselves fit to judge the local leaders to whom Mobutu’s monstrous regime gave birth.
As the reactions to Ngudjolo’s acquittal revealed, many of the human-rights and international-justice advocates who once concerned themselves with the rights of the accused have become preoccupied with victims and the ‘scourge of impunity’ instead. Prosecution and conviction are increasingly conceptualized as the ‘fulfilment of the victims’ human right to a remedy’, as Darryl Robinson has noted.footnote85 Amnesty International once focused on the release of political prisoners, with ‘amnesty’ central to its mission; on the treatment of defendants in custody and their right to a fair trial. Today, with the rise of an international-criminal-justice complex, Amnesty consistently opposes amnesty laws and is not wont to challenge the treatment of defendants accused of international crimes.footnote86 This was evident at the Rome Conference, where human-rights ngos under the cicc umbrella were the most strident pro-prosecution voices. These groups advocated loudly for broad and open-ended definitions of crimes and modes of liability—and narrow defences—so as to avoid acquittals that would risk ‘victims’ rights to justice’.footnote87 As Robinson put it:
Whereas in a national system one may hear that it is preferable to let ten guilty persons go free rather than to convict one innocent person, the [international criminal law] literature seems to strike the balance rather differently, replete as it is with fears that defendants might ‘escape conviction’ or ‘escape accountability’ unless inculpating principles are broadened further and exculpatory principles narrowed.footnote88
Yet far from ending the de facto impunity long enjoyed by the powerful, the icc has helped to institutionalize it. The Court’s selective and highly politicized interventions have operated to reproduce one-sided narratives of complex conflicts, demonizing some perpetrators as hostis humani generis, while legitimating military interventions in the name of humanity. The logic of ‘international criminal law’ on this model was spelled out with refreshing frankness by the former Prosecutor in a recent interview on Canada’s cbc. nato and the Court should work hand in hand, serving one another: ‘Integrate the sc, the icc, nato forces.’footnote89 Once celebrated as an avatar of Kantian cosmopolitanism, the icc has served rather to shield and strengthen the imperial powers, less a tool of international justice than the judicial concomitant to Western intervention.