International Prosecutors ed. by Luc Reydams, Jan Wouters & Cedric Ryngaert (review)

[T]he antibalaka [Central African Republic militia fighters] abducted three refugees. One of the nuns, Sister Josephine, told their leader that the camp was under the jurisdiction of the International Criminal Court, and that if anything happened to his prisoners he could end up in The Hague. “It was a lie,” Father Bernard said, and smiled. “But when the antibalaka leader heard that, he agreed to let them go.”¹

An international criminal court prosecutor casts a long shadow. Indeed, this is part of the importance of international criminal courts: because they prosecute horrific crimes that would otherwise go unpunished they achieve an outsized importance. International Prosecutors provides an up-close examination of how these difficult cases are managed and put together. It also provides a detailed look at the various tribunals at a time when international criminal justice is being reshaped by the disappearance of the ad hoc courts and the emergence of the permanent International Criminal Court. As is apparent from International Prosecutors, the ICC is a much different creature from its predecessors; one contributor calls it a “post-modern tribunal,” and a great deal depends on its future.

With 123 countries as members, and a strong statute and rules, the ICC should be up to the challenge. Unfortunately, the ICC’s growing pains have disappointed its supporters and energized its detractors. Problems have arisen at almost every step of the way. In January 2009, Luis Moreno Ocampo, the first Prosecutor of the International Criminal Court, presented the first witness, a former child soldier, at the ICC’s first trial. This moment, unfortunately, turned into an embarrassment for the Prosecutor when the witness retracted his earlier story, telling the judges “It’s not true.” This was not the first setback: the prior year, the Trial Chamber became incensed that the Prosecutor had withheld critical evidence. The judges halted the proceedings, and ordered the defendant, Thomas Lubanga Dyilo, released. The Appeals Chamber reversed the stay order but upheld the finding of misconduct.

Following this inauspicious start, the ICC’s first trial proceeded in the long, drawn-out fashion of international criminal proceedings. Over two years, the Trial Chamber heard from more than fifty witnesses regarding the allegations that Lubanga, as a rebel commander in a brutal civil was in 2002 and 2003 in the Democratic Republic of the Congo, had enlisted and conscripted soldiers under the age of fifteen. Some of these witnesses were found by trial judges to have given false testimony; two witnesses engaged in identity theft in order to testify.

The Trial Chamber ultimately convicted Lubanga and sentenced him to fourteen years imprisonment, and the Appeals Chamber affirmed by a 4-1 vote. A blistering dissent, however, from Judge Anita Ušucka criticized the Prosecutor for failing to offer conclusive evidence of any actual child soldiers. Instead, Judge Ušucka stated that the Prosecutor “contaminated the entire proceeding as it allowed evidence to be presented consisting of vague assertions that children were enlisted or conscripted.”²

The handful of other cases brought by the ICC Prosecutor have yielded uneven results. In the ICC’s second trial, another DRC militia leader, Mathieu Ngudjolo Chui, was acquitted of all charges. Charges against a third DRC defendant, Callixte Mbarushimana, were rejected by the Court at the preliminary confirmation stage. A fourth defendant from the DRC, Germain Katanga, was convicted on some charges and acquitted of others. In May 2014, the Prosecutor and the defense jointly dropped their appeals of the judgment.

The Kenya cases have largely foundered as a result of active hostility from the Kenyan government, which has used the cases to undermine the ICC’s credibility and authority. In December 2014, the Prosecutor’s office withdrew charges against Kenya’s president, Uhuru Kenyatta. Notably, the Kenya cases are the only ICC cases to come from the Prosecutor’s own initiative rather than a state or Security Council referral.

With this background, it should be obvious that the operations...