For better of for worse, it is extremely hard to insulate international criminal law from the influence of politics. Volumes have been written on the law and politics of the Nuremberg IMT, the trial of Eichmann in Jerusalem and the ad hoc tribunals for Rwanda and the former Yugoslavia (to name only a few). It is well-known that international courts and tribunals employ various non-legal stratagems to ensure state support in the form of, for example, funding, cooperation with arrest and detention of suspects and the gathering of evidence (see, for instance, Victor Peskin’s wonderful book on the struggle for state cooperation at the ad hoc tribunals).
The public image of international criminal law is founded on lofty ideals and the idea of legalism (generally speaking, the idea that we can “confine politics to the straight-jacket of law”). International criminal law’s first permanent supranational institution, the International Criminal Court (ICC), perhaps most powerfully represents this public image of international criminal law. We love to think that it is all simply an exercise involving the strict and objective application of international law in a courtroom. Yet there is also an unseen part to international criminal justice that is not so much regulated by the letter of the law. It is here that powerful individuals may be able to influence – again, for better or worse – the mandate of a legal institution.
This past week has laid bare a number of startling revelations concerning the ICC that confirms the continuation of this dichotomy in the ICC-era. Former chief prosecutor, Luis Moreno Ocampo finds himself embroiled in a leaked document scandal involving amongst other things allegations of attempted backroom deals and untoward interference with the work of the ICC in Kenya and Libya.
I have provided some links for further reading below. Is this just unethical behaviour by an individual or is there something more fundamentally wrong with the international criminal justice project? If a former ICC chief prosecutor emails a former UN Secretary General seeking to influence proceedings at the Court, could/should we accept this a normal? I don’t think so. On the other hand, international legal institutions can achieve only so much without relying on unseen help from powerful political actors.
It remains to be seen if the latest revelations will affect the credibility of the ICC as an institution but the reports of the past week certainly won’t help the ICC’s cause in Africa. Oh, and we also learned that Angelina Jolie volunteered to help catch Joseph Kony by way of a ‘dinner honeytrap’...
Some informative pieces on the leaked documents can be found here, here, here and here.