ICC Prosecutor Symposium: Placing the Prosecutor within the International Criminal Justice Project

[Diane Marie Amann is Emily & Ernest Woodruff Chair in International Law and Faculty Co-Director of the Dean Rusk International Law Center at the University of Georgia School of Law.]

Opinio Juris and Justice in Conflict deserve much credit for the rich discussion they have generated in anticipation of December’s election of the third Prosecutor of the International Criminal Court.

The contributions to this joint symposium have touched upon a variety of issues. Several concerned the relationship of the Prosecutor to other powerful entities, including states parties like Kenya and nonparty states like the United States (here and here), and also to the advisability of engaging public opinion in states where the government in power is anti-ICC. Others concentrated on the portfolios that the next Prosecutor should prioritize; not least, investigation, both as a strategy and a set of techniques (here, here, and here). Still other posts stressed the necessity of entrenching gender equality, with respect both to the Prosecutor’s practices of internal management and to external agenda-setting. (Speaking personally, it was an honor to read posts here and here pointing to the 2016 Office of the Prosecutor Policy on Children, on which I had the privilege of working.)

Many, many of the symposium’s posts focused not on the position so much as the person. What qualities of character does an ideal Prosecutor possess? What skill set ought the Prosecutor bring to the job? And even, what nationality is most desirable for an ICC Prosecutor?

This singular attention to the person and position of Prosecutor is entirely appropriate. The impetus for the symposium, after all, is last August’s vacancy notice, the terms of which invite exploration of concepts like “excellent management and technical, legal and leadership skills” and “impeccable personal and professional integrity.” That said, placing too much weight on the person and position of Prosecutor carries risks.

One risk is the expectation of all things from one human being – expecting that any one person can be an inspiring world leader, a deft diplomat, a brilliant boss, and an incisive legal strategist, all at the same time. Any such expectation is inevitably doomed to disappoint, a fact that has been demonstrated repeatedly throughout the history of international criminal law. Today Robert H. Jackson holds a hallowed place in that history, for example. But in his own times his personality, his performance, and indeed the entire Nuremberg project drew criticism. Relatively well known are New Yorker reporter Janet Flanner’s allegations of Jackson’s “inadequacies as the leading Allied man”; so too the reference, by one of his Supreme Court brethren, to Nuremberg as a “‘high-grade lynching party.’” (p. 1588) Even some Nurembergers harbored reservations about the overall project, as I have written, quoting Krupp trial prosecutor Cecelia Goetz (p. 616). But such voices were muffled in the 1990s fervor to revive international criminal justice – just as, as has been noted, commentaries sometimes dwell on the successes and minimize the deficiencies of that second generation of international criminal tribunals.

In short, no one project is at all times perfect, nor is any one person is at all times ideal. The most that ought to be hoped for at the International Criminal Court – in this third generation of international criminal law – is a Prosecutor who possesses a quantum of each desired attribute, and who will manage, most of the time, to deploy the attribute that is most needed at the time.

There is risk too in the very association of a complex project with a lone person or position. The discourse frequently equates a given international criminal tribunal with the identity and performance of the (almost always capitalized) Prosecutor. All credit, and all blame, is placed on him (or, on occasion, her). That tendency bears echo with Carlyle’s Great Man theory, the concept that the course of history is charted by a very few individuals. These days many historians discredit that notion. The theory surely seems  inapposite to international criminal justice, with its multiplicities of functions and actors. Investigation and prosecution are pivotal functions, of course. But so too are prevention, protection, punishment, and reparation – and none of these is the sole, or even the principal, responsibility of the Prosecutor.

Responsibility also lies elsewhere in the Court, in the institutions of Chambers, the Registry, and the Assembly of States Parties, and in the persons who make up those institutions. States qua states play a role, whether they are parties or nonparties to the ICC, as do the intergovernmental organizations within which they operate. (Posts have observed that sufficient resources and “a workable mandate” are essential to success, as are myriad other forms of support from states that wield global power and influence.) Practitioners including defense and victims’ counsel, plus nongovernmental organizations, academia, donors, and the media, also all play roles, in helping to construct perceptions of the project and in contributing, or not, to the project. All of them deserve some of the credit, and some of the blame.

Disclaimer: Since 2012 I have had the honor of serving as the Special Adviser to International Criminal Court Prosecutor Fatou Bensouda on Children in and affected by Armed Conflict. I contribute this post solely in my personal capacity.