The International Prosecutor
Project Description
This research is about a new actor in international law and politics: the international prosecutor. For several reasons we focus on the prosecution of international tribunals - as opposed to the other organs, viz. bench, registry, or defense. The prosecutor is the public face of international criminal justice and its institutions. It is the prosecutor who knocks at the door of the various states and international organizations to request their aid; it is the prosecutor whom ‘war criminals’ fear most; it is also in the prosecutor that victims vest their hope. And the voice that addresses public opinion through the media is most often that of the prosecutor. Second, the prosecutor is also the principal strategist whose decisions and actions really shape international criminal justice and its institutions. But investigations, indictments, and prosecutions may also impact politics and stability in the targeted state, or beyond. (S)he therefore is in more than one way the locus of power in international criminal justice. Third, an international prosecutor also is called from time to time to assume political functions. Diplomacy outside the courtroom sets her/him apart from the bench and defense. Finally, more than the other court organs, the international prosecutor faces the question of constituency. Who does (s)he represent? Whose justice is it? The victims’, the victors’, the occupier’s, the society of states’, global civil society’s? Clearly, in the administration of international criminal justice the prosecutor is a player like no other.
Our research comes at a time of growing skepticism about the liberal internationalist ideal of solving humanity’s problems through international rules and institutions and international criminal law in particular. A new generation of “realist” international criminal law scholars does not hesitate to batter and shatter conventional wisdoms. Marc Drumbl in Atrocity, Punishment, and International Law demonstrates that international prosecutions may not be as effective as human rights advocates had hoped, and instead calls for a broader-based response to atrocity that welcomes bottom-up perspectives, including restorative, reparative, and reintegrative traditions.
The recognition of the limits of international criminal law further coincides with a rapprochement between international law and international relations scholarship. In The Legalization of World Politics some of the best scholars in international law and international relations reject a rigid dichotomy between “legalization” and “world politics”; they convincingly argue that law and politics are intertwined at all levels of legalization and that even international adjudication takes place in the “shadow of politics”: “interested parties help shape the agenda and initiate proceedings; judges are typically alert to the political implications of possible decisions, seeking to anticipate the reactions of political authorities.” Antithetical as politics and criminal law may be, even an occasional observer cannot fail to notice how the "shadow of politics" particularly looms large in international criminal courts.
It hardly could be otherwise. All but one of the international tribunals that we survey are political creations and, one way or another, the crimes they are dealing with are political. International criminal tribunals, therefore, ultimately deal with system criminality and/or crimes of state. Further complicating things, they almost invariably are committed in conflicts with international dimensions. As international institutions their autonomy is constrained by the power relations between the different stakeholders. The “virtual trials” outside the courtroom – which often center on the prosecution – matter as much as the criminal trials within. In this highly political environment the prosecutor has the seemingly mundane task of establishing individual guilt, just like in a national court, but often without the full range of tools of his domestic counterpart. For one thing, (s)he may not have a police force at his disposal.
Most of the international tribunals surveyed, moreover, are temporary institutions whose very survival may depend on strategic decisions, not least by the prosecutor. Existential uncertainty may produce institutional pressures and, rhetorical claims notwithstanding, immunity thereto ought not to be assumed. Our study therefore extends to the political and institutional context of international prosecutions. We examine how decisions of the prosecutor both shape and are shaped by these environments.
Our study considers international and internationalized (or “hybrid”) tribunals only, i.e. tribunals established by treaty, international agreement, Security Council resolution, or regulation or order from an international administrative authority or occupying power(s). National prosecutions of international crimes are excluded from our survey, whatever the basis for jurisdiction. Falling into this category, and hence beyond the scope of this study, are the Nazi war crimes trials by German, French, or other national courts, the “Derg” trials in Ethiopia in the 1990s, and the ongoing trials before the Iraqi Special Tribunal.
Using the criterion of juridical basis we identified for examination the following institutions:
- International Military Tribunal (IMT) Nuremberg and the subsequent Nuremberg Trials pursuant to Allied Control Council Law No 10
- International Military Tribunal for the Far East (IMTFE) Tokyo
- International Criminal Tribunal for the Former Yugoslavia (ICTY)
- International Criminal Tribunal for Rwanda (ICTR)
- Special Court for Sierra Leone (SCSL)
- Special Panels (SP) and Serious Crimes Unit (SCU) East Timor
- International Judges and Prosecutors (ICP) Program Kosovo
- Extraordinary Chambers in the Courts of Cambodia (ECCC)
- Bosnia War Crimes Chamber (BWCC)
- Special Tribunal for Lebanon (STL)
- International Criminal Court (ICC)
The first two tribunals completed their mandate long time ago; most others are scheduled to close down in the near future. The ICC, on the other hand, as a permanent institution created in 2002, is in its infancy years. Our study is therefore both historical and contemporary. As suggested, international prosecutors face daunting challenges and pressures, particularly when they intervene in an ongoing conflict. We recognize that they enter largely uncharted waters and that many of the historical facts upon which we will comment in our study have only become clear in retrospect. Most of our assessments of prosecutorial policies will be carried out with the benefit of several years of hindsight. We are also aware that narratives and perceptions change over time. For example, the legacy of Nuremberg has been reshaped by the Yugoslav and Rwanda Tribunals, whose legacies in turn will be reshaped by the practice of ICC.
Our study is thematic rather than institutional and purports to be analytical rather than exhaustive. Tribunals are discussed selectively to illustrate practices, rules, exceptions, anomalies, etc. Their experiences are used to enhance our understanding of any of the fifteen crosscutting issues we have identified. The end product will be an edited volume with highly original, individually authored chapters.
