Prosecutorial Discretion


Review of The First Global Prosecutor: Promise and Constraints, edited by Martha Minow, C. Cora True-Frost, and Alex Whiting

Ann Arbor: University of Michigan Press, 2015

For the last dozen years, the world has had an international prosecutor tasked with prosecuting some of the most serious crimes, including massacres of civilians, ethnic cleansing, and genocide. The prosecutor of the International Criminal Court (ICC)—currently Fatou Bensouda of The Gambia—does not have global reach, but she does have unprecedented authority to investigate and prosecute crimes across international borders. Almost 130 countries have joined the court, according the prosecutor broad jurisdiction. And rank hath no privileges at the ICC; the court’s founding document proscribes immunity for heads of state and other senior officials.

In their excellent edited volume, academics Martha Minow, Alex Whiting, and C. Cora True-Frost try to make sense of this unique official’s early record. They focus almost exclusively on the tenure of the ICC’s first prosecutor, Luis Moreno-Ocampo of Argentina, who served from 2003 to 2012 (and who penned a prologue to the volume).

Among those specialists who follow the ICC closely, the garrulous Ocampo has been a polarizing figure. His detractors accuse him of sloppy and sometimes fractious administration of the prosecutor’s office, an excessive penchant for the limelight, and—most consequentially—thinly investigated cases that sometimes collapsed once the court’s judges scrutinized them. On multiple occasions, he feuded with the judges about his office’s work. As Julie Rose O’Sullivan notes, these disagreements occasionally “erupted into public view in spectacular fashion.” (154)

Ocampo’s defenders—and this volume leans in their direction—point out that the Argentine lawyer built the prosecutor’s office almost from scratch, launched the court’s first cases, resisted judicial overreach, and helped put the ICC on the global map in a way that was not inevitable. Alex Whiting, who served as prosecution coordinator under Ocampo, observes that a slower-moving, more cautious prosecutor who insisted on buttoned-up cases would have been pilloried for stalling. Whiting, who also worked at the International Criminal Tribunal for the former Yugoslavia (ICTY), injects important historical perspective by noting that the oft-lauded ICTY suffered many of the same problems the ICC has faced.   

The often heated debates about Ocampo’s legacy are mostly an insider’s game. Fortunately, this volume pays attention to the more fundamental questions of whether and how a global criminal prosecutor can play in a world where sovereign states still hold most of the cards. The obstacles to effectiveness are formidable. The prosecutor has limited financial resources, no police force, and relies on national governments to provide access and information, and to arrest and hand over defendants. The court’s limited resources and wide jurisdiction also mean that the prosecutor has to make difficult, politically fraught decisions about which situations to investigate.

The prosecutor’s challenges are compounded by the way in which the court was created. With only a few exceptions (notably Germany), the drive to create the ICC came from smaller and mid-size states. Many major powers—including the United States, Russia, China, and India—were either lukewarm or hostile to the project. To date, none of those states have joined the court and there is little prospect they will. Even those major players that have joined the court—including Britain, France and Germany—have rarely elevated their support for the court above other diplomatic priorities. In this environment, it’s tough to imagine the court fulfilling the ambitions of deterring crime and making a major contribution to peace and security.

Having powerful states in her corner is not the only way the prosecutor can be effective. This volume includes insightful chapters exploring ways in which the prosecutor can have an impact even in a less-than-friendly geopolitical environment. Jessica Lynn Corsi examines how ICC involvement encouraged rebels in the Central African Republic to receive training on the laws of war. And Christopher Stone provides evidence that the prosecutor’s “preliminary examinations” in several countries have sometimes galvanized the work of domestic NGOs.    

These “shadow effects” of the prosecutor’s work matter, but the power dynamics surrounding the court ultimately will determine their salience. The shadow of a court that can’t make its writ run will become fainter and fainter. And so we return to the question of whether powerful states will regularly support the court’s work. I argued in a recent book that the prosecutor’s reluctance to tread on major-power toes—particularly evident in places like Afghanistan, Georgia and Palestine— facilitated a fragile accommodation between the court and several skeptical states. By steering clear of several controversial investigations, Ocampo made it easier for Beijing, Moscow, and Washington to at least accept the ICC as part of the international architecture. That acceptance manifested itself most clearly in the two UN Security Council referrals to the court, but also in less formal ways.

In his chapter, Robert Mnookin mostly celebrates the prosecutor’s application of his discretion. Mnookin outlines the various mechanisms through which the prosecutor can avoid investigating uncertain and unpredictable ongoing conflicts or those where the political stars have otherwise not aligned for an investigation. Mnookin is skeptical that investigations in the midst of conflict make sense and applauds the prosecutor’s choice to stay out of several conflicts, notably Afghanistan and Palestine. “Delay can be a powerful tool,” he writes. In his own way, David Scheffer, the lead U.S. negotiator when the court was negotiated, also celebrates the prosecutor’s restraint. He takes it as evidence that American fears about a rogue prosecutor (particularly pronounced in conservative circles) have proven groundless. The prosecutor’s independent authority “has not proven to be the dangerous and politically dominated exercise once feared.” (41) But Scheffer’s analysis will likely be little comfort to ICC skeptics. Maybe Ocampo and his successor have been circumspect. But what’s to say that future prosecutors will follow suit? After all, the prosecutor is still mulling investigations in Afghanistan and Palestine that could eventually target American and Israeli officials. Renewed acrimony between Washington and The Hague isn’t hard to imagine.

Moreover, keeping the United States on her side is only one challenge the prosecutor faces. Another is maintaining credibility in the rest of the world as a legal actor who is not swayed by politics but pursues the facts and evidence where they lead. The backlash against the court in parts of Africa—where the court has routinely been attacked as an instrument of neocolonialism—is sometimes misguided, but it does capture an essential truth: African investigations have been easier for the court than those in areas of more direct major-power interest. When the court and its prosecutor finally do come out of Africa—be it in Afghanistan, Georgia, or Palestine—they will be entering a much more complex stage.

Posted on 17 February 2016

DAVID BOSCO is assistant professor at American University’s School of International Service. He is author of Rough Justice: The International Criminal Court in a World of Power Politics (Oxford University Press, 2014).