The following guest-post, a response to Kevin Jon Heller’s contribution to our symposium on the Next ICC Prosecutor, is by Dhruv Sharma. Dhruv is an advocate in India and was a Chevening Cambridge Trust Scholar from 2018-19.

(Photo: ICC)

The Symposium hosted by Opinio Juris and Justice in Conflict on the next ICC Prosecutor produced some great scholarship highlighting the necessary qualifications and virtues expected of the Prosecutor while also setting the expectations of the stakeholders interested in the Court’s work, and its processes.

The present post is a critique of Professor Kevin Jon Heller’s contribution to the Symposium, where he seeks to highlight the need to appoint the next ICC Prosecutor from a P-3 State (USA, UK, or France) in order to incentivise cooperation from such powerful State(s).

The Argument

Heller’s article offers three arguments. Firstly, that appointing a Prosecutor from a P-3 State will “invest the Prosecutor’s home state in the ICC’s success, making the state more likely to support and cooperate with the Court”. At the outset, the appointment of such a Prosecutor would, at best, ensure cooperation from that particular State which may get invested in workings of the ICC. Heller places excessive reliance on the role of an individual as an international actor and seems to hope that decades of foreign policy shall potentially change based on the position and persuasion of that individual. This argument is presumptive of State behaviour as, clearly, the presence of a French and a UK Judge at the Court has not had a similar effect. However, as illustration, let us consider current US behaviour towards internationalism. The US has, in the past four years’, effectively locked down the WTO, withdrawn from the Iran Nuclear-Deal, and notified the UN of its xwithdrawal from the Paris Agreement. Against this background, Heller hopes for cooperation from such State merely on the basis that one of its nationals leads an Organ of a Court to which it is not even a party. Conversely, this incentive for a State to cooperate can be turned on its head to argue a potential bias on part of the said Prosecutor in favour of the Home State (or its Global North allies). It is perhaps helpful to reflect upon the axiom that, “while there are neutral countries, there are no neutral men”.

Secondly, Heller states that a Prosecutor from a P-3 State would improve neutrality and decrease allegations of bias. Even if the allegations of a “rogue prosecutor” let loose by the ICC decline, this argument would again prevent one scenario when the Prosecutor goes against her own State provided that the relevant State does refrain from making such allegations. In the past one year, leaders from the P-3 States have publicly gone against their own foreign representatives (here and here) and their P-3 allies (here and here). Expecting cooperation from a State owing to the appointment of a Prosecutor from an ally state is naïve at best, and deceptive at worst. Further, the symbolism constraining the powerful states faces a counter symbolism of bias and neo-colonialism. Most, if not all, discussions of bias and the ICC have been directed towards the Court’s particular gaze over Africa (hereand here), as a result of which one State has withdrawn from its Membership of the ICC, and two others almost withdrew from the Court (here and here). A Prosecutor from a P-3 State would not resolve this legitimacy crisis, and instead intensity allegations of bias against the Court, albeit from the Global South.

Thirdly, that the appointment of a Prosecutor from the P-3 would ‘obviously’ enhance the support of the Security Council. One must note that the Security Council is only as strong as its weakest link and better support depends entirely on all five States not exercising their veto power. It is worth remembering that the Council has, in the past, suffered from a deadlock over referral of even the allies of the P-5 States to the ICC, let alone the States themselves. The argument seeks heightened support from States who while setting up the world’s first international military tribunal conveniently brought only the individuals from the losing States to justice. The appointment of a Prosecutor from the P-3 would only amplify the scepticism of the remaining veto States towards the enhanced influence of one State at the ICC.

Heller’s political pill could, contrary to his assertions, decrease cooperation, increase perception of bias, and further embroil collaboration with the UN.

The foregoing arguments do not seek to deny the place of politics in the decision-making of the ASP. However, Heller’s admittedly unabashed plea has a higher cost than the benefits it purportedly generates. Any political exercise must consider the response of the stakeholders to that politics, and in this case, these stakeholders (Global South), already sceptical of the Court would only further lose faith in the ICC.

Re-incentivising Global Power Structures

International criminal law has traditionally been the domain of the western world, including the P-3. Heller’s prescription requires not only a well-qualified but geographically well-endowed Prosecutor. It prefers, ironically, a Prosecutor from a State that is not committed enough to join the treaty establishing the ICC over one from a Member State and casts doubt on the cooperation of two Member States absent effective enticements.

The author’s argument continues existing global power structures by reasoning that things would get better if only powerful states were to be re-seated at the helm of an Organ of the Court. Such appointment would boost cooperation from the powerful considering they now head the OTP, decrease non-cooperation by others, and generally allow for a better stick to accompany the proverbial carrot.

This is not only an unfortunate solution but also a temporary one. It is unfortunate for it sacrifices principle at the altar of (unsubstantiated) pragmatism. It is temporary for it seeks to treat the symptoms while ignoring the cause of the malady. The present proposal may resuscitate the ICC for the duration of the appointment of the Prosecutor while making future cooperation contingent on promises of continued authority.

Representativeness remains one of the hallmarks of international organisations which provides a degree of equality to member states, irrespective of affluence or influence.  Making institutions subservient to the powerful states by allowing the selection of managerial staff (Reisman), through structural or political manoeuvring, downgrades the functional foundations of such institutions.

Conclusion

The assumption behind the author’s argument is that the ICC can deliver positive results not based on its functioning or the tenuous yet reassuring cohesion amongst its Members, but the indulgence of a few. Consequently, the ICC can ignore the less powerful Member States, or being truly International and perform its sacred task of ending impunity and bringing international justice based on the largesse of the powerful.