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erated its opposition, as a realist would predict.
States™ accessions to the Statute do not establish their degree of support
for the Court in practice (aside from their assessed ¬nancial contribution).
States™ tepid support for the ICC so far is shown by the slow implementa-
tion of the domestic legal reforms necessary to bring signatory state™s penal
codes into compliance with Statute requirements. Members of the Assembly
of States Parties, while encouraging additional states to sign the Statute, do
not accord accession a high priority in their bilateral relations with non-
signatories. The relatively low level of priority accorded to ICC matters by
states is also evident in the level of diplomatic representation that many
countries accord the Court in The Hague and in the annual meetings of the
ASP. Although U.S. opposition to the Court appears to be waning, active
cooperation remains a distant prospect. Meanwhile, the discussions about
the crime of aggression carry the potential for rousing greater opposition
from the major powers who are currently outside the Court.
255
Conclusions


THE SITUATIONS

Core judicial functions de¬ne the ICC and enable it to defend itself against
pressures to politicize its role; however, the Statute leaves considerable
leeway for Court of¬cials to explicate that role and its limits. In developing
procedures for selecting situations to investigate, the OTP shifted emphasis
from a legalistic approach to a somewhat more political-diplomatic one.
In practice, when the OTP opted for negotiated self-referrals, thus avoiding
the problem of noncooperation by situation states, the Prosecutor risked
appearing partisan.
The Court is experiencing hazards common to the tribunals, as well as some
new ones of its own. Like the Yugoslavia tribunal, the Court is pursuing crimes
perpetrated in ongoing con¬‚icts; thus, the Court itself becomes embroiled in
the politics of the con¬‚ict. Much as Serbian authorities vili¬ed the ICTY, so
(for instance) the Sudanese government is decrying the ICC in its investigation
of Darfur. Like the Rwanda tribunal which has found it impossible to pros-
ecute individuals associated with the current government™s party because of
the need for government cooperation, the ICC has been accused of going easy
on the military forces of President Museveni in Uganda and the political ¬gures
in the DRC who were vital to its transitional election process.
The threat of instrumentalization has been more immediate to the ICC
than it was to the tribunals, since the Court™s complementarity doctrine
requires it to cooperate more closely with sovereign authorities. President
Museveni engaged the Court in part to build support among other, par-
ticularly European, states, and to add the ICC™s clout to his efforts against
the LRA. Ugandan and external critics argued that the Court was being
coopted by the government and, as a consequence, would overlook crimes
of the Ugandan military (UPDF). This image was exacerbated by the Pro-
secutor™s appearance with Museveni in London and Moreno Ocampo™s
later statements that implied that investigations would be sensitive to
ongoing political efforts. After the warrants were issued, the Prosecutor
argued that he would pursue criminality whatever the source, including the
UPDF, but that the Lord™s Resistance Army™s crimes were much greater
than those of the UPDF. President Museveni exacerbated the problem by
repeatedly appearing to use the Court for leverage against the LRA, making
claims that he could get the Court to lift its warrants if his negotiations with
the LRA leadership succeeded.
Meanwhile, just as advocates of a negotiated settlement in Bosnia pres-
sured the Yugoslavia tribunal not to indict of¬cials with whom negotiations
256 Building the International Criminal Court

were taking place, humanitarian organizations worried that the ICC™s arrest
warrants for the LRA would damage chances for peace, raising the peren-
nial question of whether peace and justice could or should be simulta-
neously pursued. They pressed for the Court to lift the warrants, which the
Prosecutor ¬rmly rejected as not within his power. Should it come to such a
decision, the judges will have to decide what to do. The Statute thus gave
the OTP cover for staying out of the political fray, but the Court as a whole
cannot avoid it. The Court™s image has been battered, at least among
humanitarian and peace-oriented observers.
In the Congo, President Kabila appears to have used the Court to dis-
credit potential opposition and build external support for his government
too. Issuing a warrant for only one suspect, and appearing to hold off until a
¬rst round of elections took place in the DRC for a new government,
opened the Prosecutor to charges that he was timing his actions according
to political, not judicial factors. Victim-oriented NGOs wanted warrants to
be issued for additional suspects and wider charges against the ¬rst suspect,
Thomas Lubanga Dyilo. Cooperation with the authorities enabled the ICC
to bring Lubanga into court, but deference to the government may have
limited the range of suspects the OTP pursued. The appropriate secrecy of
OTP operations makes evaluation of the instrumentalization of the Court
very dif¬cult, although should a pattern emerge of only second-tier mis-
creants being subject to Court warrants, an adverse conclusion about the
political orientation of the Prosecutor could appropriately be drawn. On the
other hand, ICC involvement seems to have spurred DRC authorities to
build their domestic judicial capacities, which, if genuine, would be a highly
positive result of Court involvement.
In the Sudan, after a two-year investigation, the ICC issued two war-
rants. Humanitarian NGOs welcomed the addition of ICC pressures to
others being exerted upon the Sudan government to moderate its genocidal
actions in Darfur; however, other observers regarded the OTP™s progress as
sluggish and aiming too low. Because the initial information turned over to
the OTP from the Special Commission included many more names and
much higher of¬cials of the state, the Prosecutor™s claim that the warrants
issued were based on the best evidence and lodged against the most serious
perpetrators was not found convincing by some closely involved with the
situation. Similarly, announcement after two and a half years of consider-
ation of a formal investigation into the Central African Republic struck
some commentators as a rather slow response.
In all four situations, Pre-Trial Chamber judges sought to channel
prosecution activities toward greater concern for victims, with swifter
257
Conclusions

investigation procedures to bring suspects before the Chambers. The early
years of the ICC in these ways mirror the tribunals, where the ¬rst few years
were also characterized by judges™ dissatisfaction with the prosecution™s
slow progress and efforts by the Chambers to exert increasing in¬‚uence over
the OTP.


BUILDING JUSTICE

The ICC is the organizational manifestation of new institutions of inter-
national criminal justice built on norms advocated by international lawyers
and by NGO activists commanding the consensus of an epistemic com-
munity that coalesced at the Rome Statute Conference. The insights of
constructivist theorists “ that ideas matter and that decision makers can be
motivated by moral commitments, desires for enhanced reputation, pres-
tige, and the fear of embarrassment, and thus that nonmaterial goals can
become national interests “ are veri¬ed by the creation of the ICC. Limited
Court jurisdiction (over only genocide, crimes against humanity, and war
crimes) and protections of sovereignty (the Security Council™s role, the need
for voluntary state cooperation, checks on the Prosecutor from Chambers)
accord with realist insights; moreover, realists can explain the potential
material costs of state opposition. States™ delegation of limited authority to
an international organization, reciprocal in¬‚uences of the organization
upon the states, and vice versa, and their consequences for the organiza-
tion™s autonomy, survival, legitimacy, and growth ¬t the neoliberal insti-
tutionalists™ vision.
The normative consensus and organizational machinery have largely
been established, but the Court is still young. States remain capable of
instituting single-purpose tribunals to pursue international criminal justice,
in the patterns of the ad hoc tribunals, domestic“international mixed truth
commissions, and a variety of other special courts.1 The ICC was intended
in part to make such ad hoc arrangements unnecessary; nevertheless, they
also represent alternative organizational species that could coexist with, or
supplant, the ICC. The Court™s survival and vitality can be demonstrated
only as it accumulates a record of operation, through the 2009 Statute
Review Conference and beyond, including completion of full judicial cycles
from referral to conviction (and/or acquittal) of suspects, engagement of its

1
Such as the Special Court for Sierra Leone, Extraordinary Chambers in the Courts of
Cambodia (Khmer Rouge tribunal), and the Iraqi High Tribunal (Dujail trial of Saddam
Hussein and others).
258 Building the International Criminal Court

machinery for restorative measures, and resolution (or shelving) of the
aggression debate.
Internally, routines for coordination remain ¬‚uid even as the organiza-
tion generates massive tomes of operational rules. Because the Court™s
original President, Registrar, and Chief Prosecutor remain in place, the
degree to which coordination and leadership problems are structural, as
opposed to personal, remains to be seen. Future leaders of the Court will
have the advantage that they will not be faced with the challenges of
bringing the entire organization into being. The early years of the Court are
nonetheless establishing precedents that will shape the Court for years to
come. The challenges to the Court come from all directions “ it pursues its
cases in very dif¬cult operational environments; its retributive, restorative,
civil-law/common-law, peace, truth, and justice objectives reside together,
but not comfortably, in its organizational mandate. Court of¬cials assert
that the touchstone of their organization™s reputation and legitimacy is its
judicial (nonpolitical) nature, even as they juggle the political pressures to
which they are subject.
During a visit to Japan in December 2006, ICC President Kirsch demon-
strated his concern about the Court™s reputation:
There™s not a shred of evidence after three-and-a-half years that the court has done
anything political. The court is operating purely judicially . . . and that, in turn, has
had clearly an effect of relaxation on the part of states that were initially very
opposed to the court and now are much more sympathetic and interested in the
court.2

This encomium to legal objectivity understates the complexity of challenges
to the Court. While incorporating design elements contributed by legal
experts, the Statute is ultimately a document of political compromise,
establishing an organization with tensions built into it by a broad mandate,
that operates in highly politicized environments. Political choices abound at
all levels “ international, organizational, and among the Court™s organs and
personnel. Its decision mechanisms cannot be comprehensively legal. Even
though its core activities are primarily judicial, its broad mandate, admin-
istrative complexity, and intricate connections to states and other organi-
zations inevitably involve it in nonjudicial decisions, political in their
rami¬cations. The boundaries between judicial and political choices cannot
be sharp. The timing and substance of Court interactions with international
organizations, arrangements for cooperation with states in and out of the


2
Quoted in Herman, ˜˜Japan™s Expected to Support International Criminal Court™™ (2006).
259
Conclusions

ASP, with situation and other states, and with local and international
NGOs require more than purely judicial decision making. The Court™s
course will be determined by of¬cials™ judicial decisions, administrative
choices, and political judgment as it strives to ¬ll the organizational niche
created by converging international criminal law norms. Rather than non-
political, the Court must be politically constructive or, at least, non-
threatening, by virtue of its modes of action. Its record in this regard is
promising so far, but its secure establishment as a signi¬cant operational
organization will take a considerably longer period.
Its success so far is indicated indirectly by states™ continuing support.
States have bestowed generous budgets upon the Court and appear willing
for its staff to grow to approximately the largest size of the Yugoslavia
tribunal (planning for the ICC™s permanent headquarters is based on a
staff size of about 1,250). Survival and growth are ensured in the short
run. For long-run solidi¬cation of the ICC™s position, the Court will need
to show ASP members that it continues to contribute to their objectives.
This requires successful, respectable, reasonably ef¬cient trials and con-
structive cooperation with states as they pursue suspects on their own. The
Court™s success would also be shown by further accessions to, and mem-
bers™ adoption of domestic legal codes in compliance with, the Rome
Statute.
International NGO support for the Court too depends on the ICC™s
ability to implement activities across the range of its somewhat internally
contradictory mandate. The Court™s service to humanitarian and human
rights objectives, retributive and restorative justice goals, would sustain
NGOs™ enthusiasms for the Court, although these objectives are not easily
compatible. NGO support for the ICC could continue to raise the embar-
rassment threat against states contemplating opposition to, lack of coop-
eration with, or only feeble support for the ICC, additionally aiding in
securing the Court.
Norm convergence enabled the constitution of a new institution of
international criminal justice at a propitious moment in international
history between the fall of the Berlin Wall and the fall of the Twin Towers,
enabling states prodded by international lawyers and NGOs to produce
the Statute of the International Criminal Court. From a constructivist™s
standpoint, the creation of the ICC denotes a pivotal historical moment in
the development of international society. From a realist™s standpoint,
further complexity has been added to the anarchic international system
without fundamentally changing it. For neoliberal institutionalists, states
added to the panoply of organizational mechanisms intended to mitigate
260 Building the International Criminal Court

anarchy and enable collective gains. From all three standpoints, the future
of the organization rests upon its ability to navigate political currents
while being responsive to states™ interests yet resisting their pressures, as
humanity builds a court to try individual perpetrators of its worst crimes,
to bring recognition to their victims, and to restore the rule of law and
help heal societies.
Web Sites for Further and Ongoing Information




The Frederick K. Cox International Law Center War Crimes Research
Portal (Case Western Reserve University): http://www.law.case.edu/
war-crimes-research-portal/. This Web site provides a massive set of
further links, arranged by topic.
The Hague Justice Portal: http://www.haguejusticeportal.net/. This Web
site contains links to academic institutions and events in The Hague,
relevant journals, etc.
The ICC™s ˜˜Legal Tools™™ page: http://www.icc-cpi.int/legal_tools.html. The
Legal Tools include the Rome Statute of the ICC, under the ˜˜Access to
the Tools,™™ ˜˜Basic ICC Documents™™ link, and a treasure trove of pre-
paratory and other documents.
International Criminal Court English homepage: http://www.icc-cpi.int/
home.html&l=en
International Justice Tribune: http://www.justicetribune.com/index.php?
page=v2_une. A newsletter and archive (by subscription) with superb
reporting from and about various courts and tribunals are included on
this Web site.
International Criminal Tribunal for the Former Yugoslavia homepage:
http://www.un.org/icty/.
International Criminal Tribunal for Rwanda homepage: http://69.94.11.53/
default.htm.
NGO Coalition for the International Criminal Court: http://www.iccnow.
org/. This is an excellent source of news and analysis about current

261

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