Luis Moreno Ocampo The Challenges of The Inaugural Years YJILO

The Yale Journal of International Law Online
The Office of the Chief Prosecutor:

The Challenges of the Inaugural Years†
Luis Moreno-Ocampo††
I am honored to be the Inaugural Gruber Distinguished Lecturer in Global

Justice. I share Patricia and Peter Gruber’s commitment to educational excellence,
global justice and women's rights. I deeply appreciate that they are pushing legal
scholars and practitioners to go beyond parochialism and analyze global justice.
Today, I would like to analyze how the Rome Statute that created the
International Criminal Court (ICC) is modifying the interaction between national
legal systems and creating a new U.N. Security Council dynamic.
I have always enjoyed visiting Yale. During the last twenty years, and I have
been here on many different occasions. I have attended seminars here and in Latin
America which were organized by SELA (Seminario en Latinoamerica de teoria
Constitucional y Politica, Latin American Seminar on Constitutional Law and
Political Science theory) under Owen Fiss leadership. I had the privilege to be in
class with Owen, and also George Priest, and I have been learning from Michael
Reisman since I was a young prosecutor trying to control corruption. I have met
Drew Days when he was leading the Schell Center, and have discussed corruption
problems with Susan Rose Ackerman, foundational legal issues with Paul Kahn
and international law with Oona Hathaway. I have admired how then-Dean
Harold Koh managed a day-long seminar on how to stop crimes in Darfur. James
Silk have made a great contribution to the Office of the Prosecutor by establishing
a connection with the Allard K. Lowenstein International Human Rights Clinic.
All of you have been a great influence on me and the Office of the Prosecutor,
and I hope that in the future, after this lecture, we maintain this interaction.
I. THE INTERNATIONAL CRIMINAL COURT AS PART OF THE

TWENTY-FIRST CENTURY’S REALITY
Over the last nine years, I have had the privilege of participating in the
establishment of the International Criminal Court, a world journey that
reinvigorated the Nuremberg legacy and transformed it into a permanent
supranational criminal justice system. More than 120 states from all over the
world ratified the Rome Statute and committed to end the impunity of the most
† This Essay is adapted from a speech that Luis Ocampo delivered at the inaugural Gruber
Distinguished Lecture in Global Justice at Yale Law School on Jan. 28, 2013.
†† Founding Chief Prosecutor of the International Criminal Court (ICC) (June 2003-June 2012).
Spring 2014 The Office of the Chief Prosecutor 33
serious crimes of concern to the international community as a whole in order to

contribute to their prevention. My term ended only seven months ago. Preparing
for this lecture offered me a great opportunity to reflect on our work.
Over the course of nine years, I have witnessed a sea change in the
international normative system. Within a global peace and security system led by
the United Nations Security Council in accordance with the U.N. Charter, there
emerged a growing subsystem of supranational criminal justice adopted by the
Rome Statute.
Today, I will not discuss whether it is convenient to have supranational
institutions, or whether the United States should consider ratifying the Rome
Statute. I propose instead to analyze the operation of the subsystem created by the
Rome Statute and to examine how it is interacting with and impacting the entire
international peace and security system designed by the U.N. charter.
The experiment I am proposing is as follows: Can we think about these
issues from an empirical point of view? Can we deconstruct categories such as
Idealism and Realism? In a paper written in 2003, Goldsmith and Krasner 1 ,
following E. H. Carr, suggested that ideals could be pursued effectively only “if
decision makers are alert to the distribution of power, national interests, and the
consequences of their policies.” 2 They argued that these factors were ignored
when the ICC was established and were pessimistic about the Court’s impact,
suggesting that the ICC “may diminish rather than enhance the protection of
human rights.”3 However, being a realist, just four years later, Prof Goldsmith
supported the referral of the Darfur situation to the ICC.4
Following Goldsmith and Krasner, my goal today is to show how the ICC
became a reality.
I will present, first in normative terms, how the international peace and
security system established by the U.N. Charter is now interacting with a new
subsystem created by the Rome Statute. Then, I will present a summary of the
evolution of the Rome Statute subsystem and its interaction with the U.N. Charter
system and will focus on the “shadow of the Court,” how the Rome Statute is
working beyond the courtroom, influencing individuals from all over the world
and providing new instruments for the decision makers’ toolbox. I will then
analyze different aspects of the jurisdiction of the Court and how the Court’s
decisions are showing respect for the legal boundaries established by the Rome
Statute. Finally, I will briefly present some recommendations on how to expand
the “shadow of the Court.”
II. THE ROME STATUTE AS “THE EMPIRE OF THE LAW”

OR AS “THE LAW OF THE EMPIRE”
Professor Jose Alvarez has presented two compelling and opposite

descriptions of the current international legal system: “Empire of the Law” or
“Law of the Empire.” 5 Although he was referring to international investment
treaties, his classification can be used to illustrate the relationship between the
1. Jack L. Goldsmith & Stephen D. Krasner, The Limits of Idealism, 132 DAEDALUS 47 (2003).
2. Id. at 48.
3. Id. at 57.
4. Jack Goldsmith, Support War Crimes Trials for Darfur, WASH. POST., Jan. 24, 2005,
http://www.washingtonpost.com/wp-dyn/articles/A31594-2005Jan23.html.
5. Jose E. Alvarez, Contemporary International Law: An “Empire of Law” or the “Law of an
Empire,” 25 AM. U. INT’L L. REV. (2009).
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34 THE YALE JOURNAL OF INTERNATIONAL LAW ONLINE Vol. 39
international peace and security system under the U.N. Charter and the subsystem
created by the Rome Statute.
In the “Empire of the Law” model, the law is a mechanism to coordinate
states parties on an equal footing. On the other hand, in the “Law of the Empire”,
the law is a mechanism to impose the collective will of the most powerful nations
on the weaker parties. In this alternative justice will be imposed.
I will argue that the Rome Statute can be both. It can be a system imposed by
the U.N. Security Council and work as the “Law of the Empire” or it can be a
system voluntarily adopted by a national state and work as the “Empire of the
Law.”
As of February 2013, 121 states have ratified the Rome Statute. 6 They
created an “Empire of the Law.” They took the sovereign decision to accept the
intervention of the ICC in their territories without need for further authorization.
They are equal before the Court.
Seventy-three states have not ratified the Rome Statute and consequently do
not have any obligation to accept ICC intervention on their territories. But the
U.N. Security Council, under both the U.N. Charter and the Rome Statute, can
impose such an obligation. The U.N. Security Council, acting as a collective
empire, has the option and the authority to trigger the intervention of the ICC in
the territories of states not party to the Rome Statute. The Court’s intervention
was imposed in Darfur and Libya but there was no agreement to do the same in
relation to Palestine or Syria. It is interesting to note that this was the formula
proposed by the U.S. delegation in Rome in 1998: the Security Council would
decide where and when to investigate and the prosecutor would decide which
cases to select within those situations. The United States accepted during the
conference that state parties could also refer situations but strongly opposed the
idea that a single individual, the prosecutor, could select the situations to be
investigated.
Figure 1: The State Parties to the Rome Statute7
6. The State Parties to the Rome Statute, INT’L CRIM. CT., http://icc-cpi.int
/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20st
atute.aspx (last visited Feb. 8, 2014).
7. PCA ICC Campaign for the Effectiveness and Universality of the Rome Statute,
Parliamentarians for Global Action, http://www.pgaction.org/programmes/ilhr/icc-campaign-
map.html
The map shows the states that ratified the Rome Statute and created the
“Empire of the Law” in blue and those states that did not ratify the Statute in
white. The U.N. Security Council acting as a collective empire has the option and
the authority to request the Court to intervene anywhere, including in the territory
of a state party of the Rome Statute (in blue in the map) and of a non-state party
(in white in the map).
The Rome Statute also defines the interaction between both models. Article
13 of the Rome Statute provides the U.N. Security Council with the authority to
refer situations to the Court8 and, respecting the supreme authority of the U.N.
Security Council on international peace and security, Article 16 provides the
Council with the power to suspend any ICC investigation or prosecution.9
III. THE ROME STATUTE IN MOTION
In 2003, eighteen judges and I, as the prosecutor, received the responsibility

to transform this innovative design into a reality. In those days, there were doubts
about the Office of the Prosecutor’s ability to carry out investigations and present
a case in Court and about the viability of the entire Rome Statute to perform as
designed. There was no expectation of a constructive relationship between the
Court and the U.N. Security Council. Ten years later, the picture is very different.
A. The Functioning of the “Empire of the Law”
The “Empire of the Law” is in motion. The states parties are financing the
operations of the Court, cooperating with investigations, protecting witnesses and
executing arrest warrants. The ICC has been involved in 20 situations around the
world including Colombia, Georgia, Afghanistan and Korea,10 which are some of
the current situations under preliminary examination. Four states parties referred
their own situations to the Court: Uganda,11 Democratic Republic of the Congo,12
Central African Republic, 13 and Mali. 14 Ivory Coast 15 accepted the Court’s
8. Rome Statute of the International Criminal Court art. 13, July 17, 1998, 2187 U.N.T.S. 90
[hereinafter Rome Statute] (“The Court may exercise its jurisdiction with respect to a crime
referred to in article 5 in accordance with the provisions of this Statute if . . . [a] situation in
which one or more of such crimes appears to have been committed is referred to the
Prosecutor by the Security Council acting under Chapter VII of the Charter of the United
Nations.”).
9. Id. art. 16 (“No investigation or prosecution may be commenced or proceeded with under this
Statute for a period of 12 months after the Security Council, in a resolution adopted under
Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that
request may be renewed by the Council under the same conditions.”).
10. Office of the Prosecutor, Report on Preliminary Examination Activities, INT’L CRIMINAL
COURT (Dec. 13, 2012), http://www.icc-cpi.int/NR/rdonlyres/63682F4E-49C8-445D-8C13-
F310A4F3AEC2/284116/OTPReportonPreliminaryExaminations13December2011.pdf.
11. Press Release, Int’l Criminal Court, President of Uganda refers situation concerning the
Lord’s Resistance Army (LRA) to the ICC (Jan. 29, 2004), http://www.icc-
cpi.int/en_menus/icc/press%20and%20media/press%20releases/2004/Pages/president%20of
%20uganda%20refers%20situation%20concerning%20the%20lord_s%20resistance%20army
%20_lra_%20to%20the%20icc.aspx.
12. Press Release, Int’l Criminal Court, Prosecutor receives referral of the situation in the
Democratic Republic of Congo (Apr. 19, 2004), http://www.icccpi.int/en_menus/icc/press
%20and%20media/press%20releases/2004/Pages/prosecutor%20receives%20referral%20of%
20the%20situation%20in%20the%20democratic%20republic%20of%20congo.aspx.
13. Press Release, Int’l Criminal Court, Prosecutor receives referral concerning Central African
35
jurisdiction and the Court independently opened investigations in Kenya.16 The

prosecution decided not to open investigations into Iraq and Venezuela and
dismissed a request by Palestine for failure to meet the preconditions for
jurisdiction. 17 The Pre-Trial Chamber reviewed the prosecutor’s evidence and
issued arrest warrants and summonses to appear against those identified as most
responsible for the massive crimes committed. Following its specific duty to focus
on gender crimes and crimes against children, the prosecution’s first case exposed
how boys and girls were abused as child soldiers, how they were trained to kill, to
rape and to be raped. Each case before the Court has highlighted a further aspect
of gender crime, from the command responsibility asserted for an organized
campaign of rapes in the case against Jean Pierre Bemba, to the charges of
genocide through rape against President Bashir. Six prominent Kenyan leaders
including the deputy Prime Minister appeared voluntarily before the Court. 18 The
Chamber confirmed the charges against four of them.19 The Democratic Republic
of the Congo, Belgium, France and Ivory Coast arrested and surrendered to the
Court a total of six individuals. The charges against Callixte Mbarushimana were
not confirmed and he was released. 20 Jean Pierre Bemba, the former Vice
President of the Democratic Republic of the Congo, is on trial. Three militia
leaders from Ituri have been tried: Thomas Lubanga was convicted, 21 Mathieu
Ngudjolo was acquitted, 22 and there is a pending decision in the case against
Republic (Jan. 7, 2005), http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press

%20releases/2005/Pages/otp%20prosecutor%20receives%20referral%20concerning%20centr
al%20african%20republic.aspx.
14. Letter from the Minister of Justice of Mali Referring the Situation to the Int’l Criminal Court
Jurisdiction (July 13, 2012), http://icc-cpi.int/NR/rdonlyres/A245A47F-BFD1-45B6-891C-
3BCB5B173F57/0/ReferralLetterMali130712.pdf.
15. Côte d’Ivoire’s Declaration under Article 12-3 of the Rome Statute, CÔTE D’IVOIRE (Apr. 18,
2003), http://www.icc-cpi.int/NR/rdonlyres/CBE1F16B-5712-4452-87E7-4FDDE5DD70D9
/279779/ICDE.pdf; Letter from the President of Côte d’Ivoire Reconfirming the Acceptance
of the Int’l Criminal Court Jurisdiction (Dec. 14, 2010), http://icc-cpi.int/NR/rdonlyres
/498E8FEB-7A72-4005-A209-C14BA374804F/0/ReconCPI.pdf.
16. Situation in the Republic of Kenya, ICC-01/09-19, Decision Pursuant to Article 15 of the
Rome Statute on the Authorization of an Investigation into the Situation in the Republic of
Kenya (31 March 2010), http://www.icc-cpi.int/iccdocs/doc/doc854287.pdf.
17. Office of the Prosecutor, Report on Preliminary Examination Activities, INT’L CRIMINAL
COURT (Nov. 2012), http://www.icc-cpi.int/NR/rdonlyres/C433C462-7C4E-4358-8A72-8D99
FD00E8CD/285209/OTP2012ReportonPreliminaryExaminations22Nov2012.pdf.
18. These included Mohammed Ali, Uhuru Kenyatta, Henry Kosgey, Francis Muthaura, William
Ruto, and Joshua Sang.
19. Prosecutor v Ruto, Case No. ICC-01/09-01/11-373, Decision on the Confirmation of Charges
Pursuant to Article 61(7)(a) and (b) of the Rome Statute (Jan. 23, 2012), http://www.icc-
cpi.int/iccdocs/doc/doc1314535.pdf; Prosecutor v. Muthaura, Case No. ICC-01/09-02/11-382-
Red, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the
Rome Statute (Jan. 23, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1314543.pdf.
20. Prosecutor v. Mbarushimana, Case No. ICC-01/04-01/10-465-Red, Decision on the
Confirmation of Charges (Dec. 16, 2011), http://www.icc-cpi.int/iccdocs/doc/doc1286409.pdf.
21. Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06-2842, Judgment pursuant to Article
74 of the Statute (Mar. 14, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1379838.pdf;
Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06-2901, Decision on Sentence
Pursuant to Article 76 of the Statute (July 10, 2012), http://www.icc-cpi.int/iccdocs/doc
/doc1438370.pdf.
22. Prosecutor v. Katanga, Case No. ICC-01/04-02/12-3, Judgment Pursuant to Article 74 of the
Statute (Dec. 18, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1579080.pdf.
Germain Katanga.23 The Appeals Chamber will review all these decisions. The
confirmation of charges against former Ivory Coast President Laurent Gbagbo is
scheduled to start on February 19. These five individuals are detained in a Dutch
prison in The Hague.
The “Empire of the Law” is in motion.
B. The Functioning of the “Law of the Empire”
Unexpectedly, the Court is also working under the “Law of the Empire”
model. The U.N. Security Council has moved from deep distrust of the Court to
referring the Libya situation to the Court by consensus in 2011. 24 In 2002,
President Bush’s administration was challenging the very existence of the Court.
The United States pushed for the adoption of U.N. Security Council Resolution
1422,25 a preemptive move under Article 16 of the Rome Statute to preclude the
Court from taking action against peacekeepers from non-states parties. John D.
Negroponte, U.S. Permanent Representative to the United Nations explained that
his country believed in the legal principles but not in an international criminal
court.26 In 2005, after three months of negotiations, the U.N. Security Council
referred the Darfur situation to the ICC, with eleven positive votes (including
Russia) and four abstentions (including the United States, China, Algeria and
Brazil).27
As a consequence of that decision, the Office of the Prosecutor opened
investigations into alleged crimes committed in Darfur and unveiled the use of the
Sudanese state apparatus to attack ethnic groups considered to be the enemies of
the government. Based on the evidence collected, Pre-Trial Chamber issued an
arrest warrant against the President of the Sudan, Omar Al Bashir, for genocide,
crimes against humanity and war crimes. The ICC also issued arrest warrants for
crimes against humanity, and war crimes against Abdel Raheem Muhammad
23. Prosecutor v. Katanga, Case No. ICC-01/04-01/07-3319, Decision on the Implementation of

Regulation 55 of the Regulations of the Court and Severing the Charges Against the Accused
Persons (Nov. 21 2012), http://www.icc-cpi.int/iccdocs/doc/doc1529337.pdf.
24. S.C. Res. 1970, U.N. Doc. S/RES/1970 (Feb. 26, 2011).
25. S.C. Res. 1422, U.N. Doc. S/RES/1422 (July 12, 2002). On July, 12 2002, after a difficult
negotiation, the Security Council unanimously adopted Resolution 1422. Invoking Article 16
of the Rome Statute, Resolution 1422 requested the International Criminal Court not to
commence proceedings against any personnel in a United Nations peacekeeping operation
from a state not party to the Statute for a twelve-month period beginning July 1, 2002. It also
expressed its intent to renew its request for further twelve-month periods for as long as it
would consider necessary.
26. John D. Negroponte, U.S. Permanent Representative to the United Nations, Remarks at
Stakeout following U.N. Security Council Vote on Resolution 1422 (July 12, 2002),
http://2001-2009.state.gov/p/io/rls/rm/2002/11846.htm (“For the United States, this resolution
is a first step. The President of the United States is determined to protect our citizens -
soldiers and civilians, peacekeepers and officials - from the International Criminal Court . . . .
Our government was founded by Americans to protect their freedom. The history of
American law is very largely the history of that balance between the power of the government
and the rights of the people . . . . We will not permit that balance to be overturned by the
imposition on our citizens of a novel legal system they have never accepted or approved, and
which their government has explicitly rejected . . . . The American system of justice can be
trusted to punish crimes, including war crimes or crimes against humanity, committed by an
American - and we pledge to do so.”).
27. S.C. Res. 1593, U.N. Doc. S/RES/1593 (Mar. 31, 2005), http://www.icc-cpi.int/NR/rdonlyres
/85FEBD1A-29F8-4EC4-9566-48EDF55CC587/283244/N0529273.pdf.
37
Hussein, former Minister for the Interior and current Minister of Defense of the
Government of the Sudan; Ahmed Harun, former Minister of State for the Interior
and current Governor of South Kordofan, and Ali Kushayb, a militia leader
incorporated to the Sudanese forces. The ICC also issued summonses to appear to
three rebel commanders considered responsible of war crimes committed during
the attack on the Haskanita base of African Union peacekeepers.28
In 2008, President Bush himself was the main supporter of the prosecutor’s
decision to request an arrest warrant against President Bashir for genocide in
Darfur. He said: “it’s very important for President Bashir of Sudan to know that
he cannot escape accountability . . . .”29 His administration threatened to veto any
U.N. Security Council attempt to stop the case. 30 In 2011, after only a few days of
discussion, the U.N. Security Council, acting by consensus, a consensus that
included the positive vote of the United States, China, Russia, India and Lebanon,
referred the Libya situation to the Court. 31 The prosecution opened an
investigation and within few months it was able to request arrest warrants. In June
2011, the Court issued arrest warrants against Libyan leader Muammar Gaddafi,
his son Saif Al Islam Gaddafi, and former Chief of Intelligence Al Sanussi.32 The
new Libyan government is challenging the jurisdiction of the Court in the latter
two cases.33
On December 20, 2012, again by consensus, the Security Council called
upon the peacekeeping force in Mali to support the ICC in its efforts to bring the
perpetrators to justice.34
In just ten years, the ICC has become part of the institutional landscape. Of
the seventy-eight states that appointed me in 2003 none have withdrawn. On the
contrary, forty-three additional states have ratified the Rome Statute and more
countries are announcing their plans to join the Court. The President of the Court
briefs the U.N. General Assembly every year about the activities of the Court. The
prosecutor regularly briefs the U.N. Security Council on Libya and Darfur. The
Arab League conducted inquiries into the Palestine situation to support the
intervention of the Court and requested international justice in the Libya and Syria
conflicts. The African Union is debating the interaction of the Court with some
African presidents. Similarly, Kofi Annan and Thabo Mbeki, representing the
African Union in Kenya and Sudan, included justice in their mediation efforts and
were interacting with the Office of the Prosecutor. The Organization of American
States and the European Union have close working relations with the Court. The
28. The Rebel commanders included Bahr Idriss Abu Garda, Abdallah Banda Abakaer Nourain,
and Saleh Mohammed Jerbo Jamus.
29. Oval Office, President Bush Meets with Darfur Human Rights Activist Dr. Halima Bashir,
WHITE HOUSE (Dec. 10, 2008), http://georgewbush-whitehouse.archives.gov/news/releases
/2008/12/20081210-4.html.
30. China Signals It Will Not Introduce Resolution to Defer Bashir Indictment, SUDAN TRIB., Nov.
3, 2008, http://www.sudantribune.com/spip.php?page=imprimable&id_article=29137.
31. S.C. Res. 1970, U.N. Doc. S/RES/1970 (Feb. 26, 2011), http://daccess-dds-ny.un.org/doc
/UNDOC/GEN/N11/245/58/PDF/N1124558.pdf.
32. Prosecutor v. Gaddafi, Case No. ICC-01/11-01/11-28, Decision to Terminate the Case
Against Muammar Mohammed Abu Minyar Gaddafi (Nov. 22, 2011), http://www
.iclklamberg.com/Caselaw/Libya/Gaddafietal/PTCI/28.pdf.
33. Prosecutor v. Gaddafi, Case No. ICC-01/11-01/11-466-Red, Decision on the Admissibility of
the Case Against Abdullah Al-Senussi (Oct. 11, 2013), http://www.icc-cpi.int/iccdocs
/doc/doc1663102.pdf.
34. S.C. Res. 2085, U.N. Doc. S/RES/2085 (Dec. 20, 2012), http://www.securitycouncilreport
.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_res_2085.pdf.
Court has been an actor in twenty of the most serious world crises, carried out
investigations in seven different situations, identified thirty two individuals as the
most responsible for crimes, including three heads of state, and ensured that
twenty four of them appeared before the judges. There are only eight fugitives
from the Court. The Rome Statute design was implemented and the Court has
become a reality that should not be ignored or misrepresented by scholars.
IV. THE SHADOW OF THE COURT
As in any court, the Judges make the final decisions based on the evidence
and on the law. But, unlike any other court, the ICC’s decision impacts the
citizens and the institutions of 121 states and beyond. The shadow of the ICC is
incredibly far-reaching.
About thirty years ago, Professor Robert Mnookin argued that the majority
of divorce cases never reach the courts; they are solved in the “shadow of the
law.” 35 Rulings on specific cases are later used by many other couples and
lawyers to resolve their disputes. The “shadow” of the ICC could have a global
reach and prevent violence, but it is up to international actors to seize the
opportunity. There is as yet no agreed international protocol to isolate and
facilitate the arrest of a sitting head of state such as President Bashir. Conflict
managers are only starting to develop strategies that harmonize the legal limits
with their negotiation tactics to end a conflict. Militaries are not taking advantage
of the new tool. They are not developing military plans to arrest individuals in the
middle of an armed conflict. These are the new challenges.
Scholars are focusing on how the prosecutor and the judges are respecting
the limits of their legal authority. But other forces have created bigger risks for
the respect for the law and the expansion of the Court’s “shadow.”
States parties have incentives to maintain their own short term interest on
budget or international exposure by controlling the ICC much as they tend to
control international organizations using methods such as budget, human
resources and oversight.
Other actors, like the President of the Sudan, Omar Al Bashir, and his
followers, accuse the Court’s decisions for abusing the history of Africa’s colonial
past. They were able to replace the narrative about a genocide committed in
Darfur with one about the Court’s bias against Africa. 36 In 2009, Muammar
Gaddafi, then President of the African Union, imposed an African Union
Resolution calling on the African states not to cooperate with the ICC. All these
efforts challenge the Court’s operation but attempts by leaders involved in crimes
to escape justice also show the impact of the Court.
The challenge today is no longer to overcome the doubts about the viability
or the legitimacy of the Court, as these are already established. It is not the time to
35. Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of
Divorce, 88 YALE L.J. 950 (1979).
36. The success of President Bashir’s alternative narrative is impressive and deserves further
analysis because it is based on the assumption that a court with only black defendants is
discriminating. An American criminal court with only black defendants could be evidence of
prejudice in the system, but not an international criminal court based on complementarity. The
ICC can only investigate situations where there are massive crimes committed and national
courts are not intervening. No one is challenging the legal conditions in the seven situations
under the jurisdiction of the Court. The “African bias” argument is also ignoring that the
victims are also black and African. Ignoring the victims would be a major failure for the ICC.
39
discuss U.S. ratification. The challenge is to better integrate political negotiations

to end conflicts and the use of military force with the new possibilities offered by
the ICC to manage violence and prevent future crimes. The right combination of
criminal investigations, political negotiations, and arrest operations is a new,
promising alternative that should be explored by scholars. Legal scholars and
political scientists should assist diplomats and international relations experts to be
more efficient.
As Manoush Arsanjany said during this morning debate the Rome Statute is
more than a Court. States parties have committed to end the impunity of the most
serious crimes and to prevent future crimes. This second dimension, the “shadow
of the Court,” should be further analyzed and developed.
V. THE ANALYSIS OF THE ICC’S JURISDICTIONAL DECISIONS
As I said, my goal today is to transform the Court’s experiences into

information that would be useful for scholars.
First, I will present a review of the jurisdictional decisions adopted by the
Office of the Prosecutor and the Chambers during the first decade of the Court’s
activities to provide an overview of the application of the legal principles defined
by the Rome Statute and of the policy decisions of the Office of the Prosecutor.
Starting with the selection of situations to investigate, I will then explain how the
Court’s jurisdiction was triggered in the situations in which we intervened and
how the prosecutor’s independent powers were exercised. Moving on to the
selection of the cases, I will present how the Office has coined policies to select
the most serious crimes of concern to the international community as a whole,
before exploring the challenges of the complementary nature of the Court’s
jurisdiction and of its intervention in international peace and conflict negotiations.
Second, I will address the judicial activities of the Court by analyzing briefly
one of the many legal discussions the Court has faced: the disclosure problem that
led the judges to stay the proceedings in the Lubanga trial. This will expose how
the judges have been upholding the legal limits.
Finally, I will discuss the impact of the shadow of the Court: How diplomats
and armies are adjusting their behavior to the Rome Statute system and how the
ICC has affected negotiations to stop conflicts.
VI. THE ICC’S JURISDICTIONAL ISSUES
A. The Decision to Open the First Investigation
In June 2003, my first challenge was to decide when and where to open an
investigation. There was no precedent. At Nuremberg, the Allied Powers made
the decision to create an international tribunal and tasked it to proceed against
certain individuals, those identified as “the major war criminals of the European
Axis.” The International Criminal Tribunal for the former Yugoslavia (ICTY) and
International Criminal Tribunal for the Rwanda (ICTR) were established by the
U.N. Security Council to prosecute crimes committed in the territory of the
former Yugoslavia since 1991 and in the territory of Rwanda (and by Rwandan
citizens for crimes committed in the territory of neighboring States) in 1994. The
temporal and the territorial jurisdiction was a choice of the U.N. Security Council.
The prosecutors could select the cases and the suspects to be investigated but the
political actors defined the particular situations.
Subsequently, in Rome the U.S. delegation opposed the establishment of an
independent prosecutor to decide where and when to intervene and proposed that
the Security Council select which situations to investigate. According to the U.S.
delegates, the prosecutor should only be able to select cases and individuals
among the situations referred by the U.N. Security Council or eventually States.37
The U.S. delegation proposed an ICTY/ICTR model in which the U.N. Security
Council would decide where and when to investigate and the prosecutor would
decide which cases to select within those situations. This became the central point
of the U.S. position and the subject of the most divisive debate in Rome.
There was consensus on defining the most serious international crimes as the
Nuremberg crimes and genocide and on the need for a permanent court, the
question of who would have the mandate to trigger the court’s activity became the
divisive point.
Finally, after an intense debate, a strong coalition of one hundred and twenty
states voted that the decision should be judicial. The Rome Statute defined the
factors to be considered and gave the prosecutor the mandate to collect
information in order to identify situations under the jurisdiction of the Court and
to request from the Pre-Trial Chamber authorization to open an investigation. The
judges were to have the final decision. The “Empire of the Law” was established.
My responsibility as prosecutor was to implement the law.
I remember a professor who visited our office in those days who told me:
“you have to make the right decision, if you start with the wrong investigation
you can destroy a unique opportunity that required a world consensus and that
was the result of two world wars. If I were in your position, I would be
paralyzed.”
37. Bill Richardson, the U.S. Permanent Representative to the United Nations, was the leading
U.S. diplomat to address the opening session of the Rome Conference. He said:
With the best intentions of international justice in mind, some have proposed
granting a prosecutor the right to initiate investigations and seek indictments against
anyone in any place. Although we respect the views of those who advocate this
proposal, we believe that it is unrealistic and unwise. It will overload the limits of the
Court’s design, leading to greater confusion and controversy. It will, in fact, weaken
rather than strengthen the Court. This Court cannot and should not address every
crime that goes unpunished, no matter how horrific or atrocious it may be . . . . To be
sure, the United States regards all violations of human rights and international
humanitarian law as reprehensible. But we must not turn an International Criminal
Court or its prosecutor into a human rights ombudsman open to, and responsible for
responding to, any and all complaints from any source. If we do, the Court will be
flooded with every imaginable complaint, hindering its investigation into the most
serious crimes and undermining its scope and relevance. The only way the office of
the prosecutor could manage such an onrush would be by making decisions that
inevitably will be regarded as political . . . . At best, the proposal for a self-initiating
prosecutor is premature. We should first give the Court the opportunity to establish
its credibility. If we move too quickly, we may create a Court that will appear sound
on paper but collapse under the weight of its own mandate. At the same time,
however, we support giving maximum independence and discretion to the prosecutor
in his or her proper sphere. When a State Party to the treaty or the Security Council
refers a situation to the jurisdiction of the Court, the prosecutor should be free to
investigate the situation within the context of the overall referral. This would ensure
that the prosecutor has the necessary backing to get the job done and the necessary
independence to do it.
Bill Richardson, U.S. Permanent Representative to the United Nations, Statement at the U.N.
Plenipotentiaries Conference on the Establishment of an International Criminal Court (June
17, 1998), available at http://old.radicalparty.org/icc/bill.htm.
41
In fact, the decision was easy as it was the outcome of the strict application
of the law.
I spent my first days in the Office reviewing hundreds of letters from all over
the world requesting the intervention of the Court. Most of them were alleging
that the U.S. troops were committing the crime of aggression and war crimes in
Iraq. It was obvious that the Court had no jurisdiction in relation to aggression as
the crime was not yet defined and neither Iraq nor the United State was a state
party to the Statute. I decided that the Office should therefore state publicly that
the incidents in Iraq were outside the jurisdiction of the Court.
Article 15 of the Rome Statute defines the process of identifying a situation
to be investigated. The Office of the Prosecutor has to conduct a preliminary
examination. It has to review information to determine the following factors:
jurisdiction (temporal, material, and either territorial or personal jurisdiction);
admissibility (complementarity and gravity); and the interests of justice. The
standard of proof is that of a ‘reasonable basis’ and as information evaluated at
the preliminary examination stage is obtained from external sources rather than its
own evidence-gathering powers, the Office pays particular attention to the
assessment of the relevance, reliability and credibility of such information.
Based on reports from the U.N. High Commissioner for Human Rights, the
U.N. Security Council, and NGOs, in particular Human Rights Watch and the
International Federation for Human Rights, we concluded that both crimes against
humanity and war crimes had been committed in Democratic Republic of the
Congo and crimes against humanity had been committed in Colombia, with
approximately five thousand killings in each case. However, the Colombian
situation required a deeper admissibility analysis, because there were on-going
domestic investigations and prosecutions. In terms of the gravity requirement the
third situation was Uganda, where the Lord Resistance Army, Joseph Kony’s
militia, had abducted 2,800 individuals and killed more than 2,500 individuals.
There were no judicial proceedings related to these crimes in the Democratic
Republic of the Congo or in Uganda. By July 2003, we announced the Court’s
lack of jurisdiction in Iraq and the Office’s decision to monitor the situation in
Ituri, Democratic Republic of the Congo, the gravest of all admissible situations.
B. The Policy of Inviting Referrals
The rationale behind the policy of inviting referral was to maximize the
possibility of receiving the territorial state’s support for our investigation. The
prosecution needed to travel to the country to conduct the investigation and
needed logistical support, including security for its investigators and witnesses.
The Office considered that a referral from the territorial state would increase
cooperation. But we established from the very beginning that the diplomatic
practice of looking for consensus was inconsistent with the prosecutor’s
independent mandate. As a consequence we established the policy that, before
requesting the authorization to the Pre-Trial Chamber, the Office would inform
the relevant states of its determination to open an investigation and offer them the
option of referring the situation to the Court. If the states concerned elected not to
refer the situation, the Office would use its independent powers.
This policy was implemented for the first time in September 2003. During
my first address to the Assembly of States Parties, I stated: “Our role could be
facilitated by a referral or active support from the Democratic Republic of the
Congo. . . . A referral or active support from African and Western countries that
have taken a role in the peace process as well as other States Parties would show
their commitment to the goal of putting an end to the atrocities in the region.”38 In
any case I was clear: “If necessary, however, I stand ready to seek authorisation
from a Pre-Trial Chamber to start an investigation under my proprio motu
powers.”39
The impact of our announcement was not linear. A few weeks later, lawyers
representing Uganda in the ongoing case between Democratic Republic of the
Congo and Uganda before the International Court of Justice came to my Office.
They wanted to present evidence showing that Ugandan officers were not
involved in the crimes committed in the Democratic Republic of the Congo.
There were in fact no allegations of Ugandans committing crimes in the
Democratic Republic of the Congo within our temporal jurisdiction. The Ugandan
troops left the Democratic Republic of the Congo immediately after its ratification
of the Rome Statute, showing, the Court’s contribution to the prevention of
crimes. The meeting provided, however, an opportunity to explore the possibility
of a Ugandan referral of its own situation. In December 2003, Uganda did. A few
months later the Democratic Republic of the Congo followed.
As a result, the Office concluded its preliminary examination process and
opened its first investigation in the Democratic Republic of the Congo in June
2004 and a month later, its second in Uganda. The policy of inviting territorial
states to refer their own situations created an academic discussion. A
commentator who was abundantly quoted wrongly sustained that inviting referrals
from a territorial state was a “novel interpretation . . . of which there is not a trace
in the travaux préparatoires,”40 suggesting that it compromised the prosecutor’s
independence. Professor Darryl Robinson showed that the idea of territorial state
referrals appeared repeatedly and consistently in the travaux préparatoires and
was not even controversial. 41 As Robinson stated the discussion in Rome was
whether referrals by disinterested states, including non-territorial states, should
even be allowed at all.
C. The Gravity Threshold
The U.S. delegation in Rome stated: “[I]t is essential that there be some
screen to distinguish between crimes which do rise to the level of concern to the
international community and those which do not. The only rational and workable
proposal to date is to look to States, and in appropriate cases the Security Council,
to speak for what is ‘of concern to the international community as a whole.’”42
38. Prosecutor Luis Moreno-Ocampo, Second Assembly of States Parties to the Rome Statute of
the ICC: Report of the Prosecutor of the ICC (Sept. 8, 2003), http://www.icc-cpi.int/NR
/rdonlyres/C073586C-7D46-4CBE-B901-0672908E8639/143656/LMO_20030908_En.pdf.
39. Id.
40. William Schabas, Prosecutorial Discretion v. Judicial Activism at the International Criminal
Court, 6 J. INT’L CRIM. JUST. 731, 751 (2009).
41. Darryl Robinson, The Controversy over Territorial State Referrals and Reflections on ICL
Discourse, 9 J. INT’L CRIM. JUST. 355 (2011).
42. Is a U.N. International Criminal Court in the U.S. National Interest: Hearing Before the Sen.
Subcomm. on Int’l Operations of the Comm. on Foreign Relations, 105th Cong. 148 (1998);
Proposal Submitted by the United States of America—Article 11 bis. Preliminary Rulings
Regarding Admissibility, UN Doc. A/Ac. 249/1998/WG.3/DP.2 (1998).
43
Any crime within the jurisdiction of the Court is grave, but the Statute
requires an additional threshold of gravity even where the subject-matter
jurisdiction is satisfied. The challenge of the Office of the Prosecutor was to
define precisely such a threshold and apply it consistently.
The Office reached the conclusion that gravity is a relative concept and
developed a matrix to compare the quantitative aspects of the different situations
while taking into considerations some qualitative aspects. As I said, we started
with the gravest situations admissible under our jurisdiction: the Democratic
Republic of the Congo and Uganda, with thousands of killings and rapes and
millions of persons forcibly displaced. The Darfur situation was even more
serious. There were more than forty thousand killings, rape was committed as a
form of genocide and more than two million five hundred thousand persons who
had been forcibly displaced were living in conditions of genocide. The qualitative
aspect was that the perpetrators were using the state apparatus to commit the
crimes.
The Central African Republic reached the gravity threshold with allegations
that the massive campaign of rapes was a military tactic to destroy any population
support for the enemy. The situation in Kenya and the Ivory Coast also included
hundreds of killings and rapes, hundreds of thousands of forced displacements.
After receiving the Libya referral and having confirmed that hundreds of
civilians had been killed, the Office considered that the gravity threshold was also
met. As in Kenya and Ivory Coast the systematic use of lethal weapons by state
forces against the civilian population in order to retain political power was a
qualitative factor. At the end of the armed conflict, the number of victims were
estimated to be more than thirty thousand.
In contrast, the smallest case in terms of number of victims was the Darfur
rebel attack against the African Union peacekeepers in their Haskanita base. The
qualitative factor in that case was that by killing twelve peacekeepers, the
perpetrators attacked the millions of civilians whom those soldiers came to protect
under the U.N. mandate. The cases before the Court are indeed the most serious
crimes of concern to the international community as a whole.
On the other hand, the Office of the Prosecutor assessed that the incidents of
willful killings and torture of prisoners allegedly committed by officers of states
parties operating in Iraq did not reach the gravity threshold required by the
Statute. There was no information suggesting that the crimes were the
consequence of a plan or policy and we considered them isolated incidents.
Following the same criterion, the Office opened a preliminary examination into a
single incident of the North Korean shelling on a South Korean island, under the
hypothesis that it could be part of a plan or policy.
In a forthcoming paper, Professor David Scheffer states: “[T]he Office of the
Prosecutor developed protocols that proved to be of far greater sophistication than
the totally unregulated political decisions by either a State Party or the Security
Council.” 43 He concluded, and I fully agree, that this is the merit of the
constitutional design of the Court. The institutional system designed by the Rome
Statute is working better than ad hoc decisions.
D. The Complementarity Test
43. David Scheffer, False Alarm about the Proprio Motu Prosecutor, in The First Global
Prosecutor: Promise and Constraints (forthcoming 2014).
On 19 November, 2011, Libyan fighters from the Zintan brigades captured

Saif Al-Islam Gaddafi. A few days later Libyan authorities made public their
intentions to prosecute him in Libya. I went to Tripoli to discuss the issue with the
Libyan authorities. I thought that the best option was that the new Libya
government invites the ICC judges to conduct the trial in Tripoli. The Chairman
of the Transitional Government and the Prime Minister received my Deputy and
me and thanked us for the Court’s efforts. They explained that for the Libyans the
Court’s intervention during the rebellion was crucial as it exposed the crimes and
the perpetrators. They felt supported in their struggle for justice when they were
the victims. But he explained that as the government they now needed to show
that they were able to administer justice in Libya.
I argued that the ICC’s intervention would protect Libya from the perception
of bias or unfair trial but the Chairman insisted, and put forward Libya’s primacy
in dealing with the crimes in line with the complementary jurisdiction of the
Court. For me this was the end of any possible discussion as Libya had invoked
its primacy under the principle of complementarity, the cornerstone of the Rome
Statute. Hence, I explained to the Chairman that he was right but that they would
have to present the case to the ICC judges who would decide.
On May 1, 2012, Libya challenged the jurisdiction of the Court and provided
detailed and confidential information on the national proceedings to the ICC
judges.44 Saif Gaddafi chose the Office of the Public Defence to represent him.
The Pre-Trial Chamber will rule on the admissibility of the case. This is the first
situation in which a state has submitted an admissibility challenge providing
concrete information that it is genuinely investigating the same case alleged
before the Court.
The standard previously adopted by the Appeals Chamber for the
determination of the admissibility of a case follows a two-step inquiry: (1)
whether national investigation and/or prosecution exists in relation to the case at
hand; and (2) where such proceedings exist, whether they are vitiated by an
unwillingness or inability to carry them out genuinely. In accordance with this
principle, the absence of national proceedings in the Democratic Republic of the
Congo and Uganda rendered the situations admissible. On the other hand, in the
Central African Republic a national judge considered that he was unable to
investigate alleged crimes committed by Jean Pierre Bemba’s forces and closed
the investigation. Later, the Central African Cour de Cassation, the country’s
highest judicial body, confirmed this decision.
The Darfur situation was different; the territorial state affirmed that
it was conducting national proceedings. It was a U.N. Security Council referral
but the Office had to apply the complementarity test established by the Rome
Statute. As a consequence, the Office spent three months collecting information
and holding meetings with high officials from the Government of Sudan. The
Sudanese government presented information showing that its judicial system was
sophisticated and efficient. They also highlighted the country’s long tradition of
tribal negotiations and different mechanisms of reconciliation. But the
complementarity test is not an institutional analysis of the judicial system. It is not
an assessment of the national justice system as a whole, but it is one that relates to
the case or to the potential case or cases under examination.
44. Prosecutor v. Gaddafi, Case No. ICC-01/11-01/11-130-Red, Application on Behalf of the

Government of Libya Pursuant to Article 19 of the ICC Statute (May 1, 2012),
http://www.icc-cpi.int/iccdocs/doc/doc1405819.pdf.
45
The Office concluded that the alleged proceedings within the Sudanese
judicial system were for crimes totally unrelated to the Darfur conflict. Having
clarified the point that the Sudan was not investigating the crimes committed by
different forces in Darfur, the Office opened the investigation on June 2005.
However, the Office continued an ongoing analysis of the admissibility of its
cases and the existence of any national proceeding. A few days after the opening
of the investigation, the government of the Sudan persisted in its cover-up
strategy and announced the creation of a new special court. This court has not
conducted proceedings relevant to the ICC. The Sudanese government announced
two additional special courts in November 2005, and numerous committees: the
Judicial Investigations Committee, the Special Prosecutions Commissions, the
Committees against Rape, the Unit for Combating Violence Against Women and
Children of the Ministry of Justice, and the Committee on Compensations.45 Once
again, these bodies did not conduct proceedings relevant to the massive crimes
committed in Darfur by different forces. The Office conducted various missions
to Khartoum, the last one in February 2007, meeting with high officials and
domestic judges. The Office found no proceedings relevant to the ICC. 46 A
government report to the African Union Commission dated 17 September 2008,
confirms that no case that addresses the systematic pattern of crimes committed in
Darfur has been undertaken.47 There is consistent information showing that these
promises to investigate and prosecute are part of a plan to conceal the crimes
committed.
Kenya was the first state that challenged the jurisdiction of the Court. It
alleged that investigations against the persons prosecuted before the Court were
currently ongoing in Kenya. However, the Pre-Trial Chamber found that although
the information provided by the Kenya government “reveals that instruction were
given to investigate the suspects subject to the Court's proceedings, the
Government of Kenya does not provide the Chamber with any details about the
asserted, current investigative steps undertaken.”48 In accordance with the ICC’s
jurisprudence the state that challenges the admissibility bears the burden of proof.
It has to provide evidence that demonstrates that it is indeed investigating the
case. It is not sufficient merely to assert that investigations are ongoing.
45. Office of the Prosecutor, Ninth Report of the Prosecutor of the International Criminal Court
to the UN Security Council Pursuant to UNSCR 1593 (2005), INT’L CRIMINAL COURT (June 5,
2009), http://www.icc-cpi.int/NR/rdonlyres/B97B3A9C-0C83-4884-881C-70C1C1EEEA53
/280448/9th_UNSCReport_Eng1.pdf.
46. Office of the Prosecutor, Fifteenth Report of the Prosecutor of the International Criminal
Court to the U.N. Security Council Pursuant to UNSCR 1593 (2005), INT’L CRIMINAL COURT
(June 5, 2012), http://www.icc-cpi.int/NR/rdonlyres/D1794227-4B8B-4316-AF04-23DAEB
110743/0/FifteenthReportToTheUNSConDarfurEng.pdf.
47 . GOVERNMENT OF THE NATIONAL UNITY OF THE REPUBLIC OF THE SUDAN, PROGRESS REPORT
TO THE AFRICAN UNION COMMISSION (Sept. 17, 2008), available at
http://www.sudantribune.com/IMG/pdf/AU_report_to_UNSC_Sep_2008-1.pdf.
48. See Prosecutor v. Muthaura, Case No. ICC-01/09-02/11-96, Decision on the Application by
the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article
19(2)(b) of the Statute (May 30, 2011), http://icc-cpi.int/iccdocs/doc/doc1078823.pdf; see
also Prosecutor v. Muthaura, Case No. ICC-01/09-02/11-274, Judgment on the Appeal of the
Republic of Kenya Against the Decision of Pre-Trial Chamber II of 30 May 2011 entitled
'Decision on the Application by the Government of Kenya Challenging the Admissibility of
the Case Pursuant to Article 19(2)(b) of the Statute, (August 30, 2011), http://www.icc-
cpi.int/iccdocs/doc/doc1223134.pdf.
In summary, there have been no national proceedings before the Office that
triggered the jurisdiction of the Court in the eight situations opened. The Sudan
and Kenya never implemented national proceedings on the cases prosecuted
before the ICC and Libya is now conducting national proceedings and challenging
the jurisdiction of the Court. But a proper analysis of the Rome Statute’s
performance should include the judicial activities implemented by states. The
mere possibility of the Court’s intervention triggered national proceedings in
Colombia, where hundreds of national prosecutions were conducted to avoid the
Court’s intervention. Similar efforts happened in Guinea and Georgia. The Court
fully respected such efforts.
At my swearing-in ceremony, I remembered Goldshmidt and Krasner’s
prediction that the ICC’s jurisdiction would expand. I stated that in accordance
with the complementarity system “the absence of trials by the ICC, as a
consequence of the effective functioning of national systems, would be a major
success.”49
Professor Eric Posner does not internalize this particular design of the Rome
Statute. He considers that the Court is a failure because it “has so far completed
precisely one trial.”50 In fact, if the national states conduct genuine proceedings,
having no cases before the ICC would be the perfect outcome. The evaluation’s
standard has to respect the design. A proper academic analysis will dissipate this
erroneous evaluation.
E. The Interest of Justice Criterion
In May 2004, I received a visit from the head of the Africa Department from
a European country highly supportive of the Court. The Ugandan referral was
public and the diplomat came to my office to explain that an investigation into
Kony’s activities would, in his opinion, only perpetuate his crimes. He stated that
the Ugandan army could not defeat Kony and if indicted Kony would retaliate
against the civilians. He also asked me who would execute an eventual arrest
warrant against Kony. He sarcastically questioned: Where is your army? He
considered that the only way to stop Kony’s crimes was to make a peace
agreement with him.
I acknowledged his interest and dedication and explained that in accordance
with Article 53(1)(c) of the Statute the prosecutor can decide not to initiate an
investigation if it is not in the interest of justice. Therefore, I invited him to
present evidence supporting the arguments he had made. I finally explained that
the prosecutor would not make the final call, that if the Prosecutor’s Office agreed
with his position the judges would then review it. I felt very proud of my legal
answer and of the wisdom of the Rome Statute.
In response, the diplomat laughed. “Evidence?” he said, “You have no idea
what a peace process is. A peace process is a fragile mechanism, it is a small light
at the end of a tunnel. It is a hope, I cannot provide evidence.” Then he re-
evaluated the situation and said: “You need evidence? I am trying to talk to Kony,
I am calling him and he is not taking my call. This is my evidence.”
49. Office of the Prosecutor, Paper on Some Policy Issues Before the Office of the Prosecutor,
INT’L CRIM. CT. (Sept. 2003), http://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b25-
60aa962ed8b6/143594/030905_policy_paper.pdf.
50. Eric Posner, The Absurd International Criminal Court, WALL ST. J., June 10, 2012,
http://online.wsj.com/news/articles/SB10001424052702303753904577452122153205162.
47
I thanked the diplomat and did not encourage him to present his evidence in
a more formal setting.
All of our investigations were conducted during ongoing conflicts and
political negotiations, forcing us to constantly refine our understanding of the
limits between judicial and political decisions. In September 2007, the Office
made public its policy paper affirming that the interests of justice should not be
conceived so broadly as to embrace all issues related to peace and security. They
are the responsibility of political actors including states, regional organizations,
and ultimately the U.N. Security Council. The prosecutor’s discretion will be
guided by his or her own mandate: to contribute to the prevention of serious
crimes of concern to the international community through the ending of impunity.
In contrast, Professor Burke White presented a different opinion. He argued:
This desire to remain apolitical has led the prosecutor and the Court as a
whole to frame its efforts as purely legal, driven by the provisions of the Rome
Statute. The result is that the Court has often been caught politically off-guard,
seen as disconnected from realities on the ground, and unable to garner the
necessary support from national governments to make the arrests necessary to
fully realize the Court’s deterrent and crime prevention capabilities.51
He is not alone; even strong supporters of the independence of the Office the
Prosecutor at the Rome Conference in 1998 considered that, as the prosecutor, I
had to make decisions based on different grounds, for example, that I should
respect local views demanding immunity for leaders like Joseph Kony and stop
the proceedings against him, or the demands of influential political actors who
considered that I should delay the request for arrest warrants against Saif Gaddafi
in order to allow states to negotiate with him.
I understand those concerns and agree with Professor Burke-White on the
difficulty of garnering support to make some arrest; this is the reality I had to face
every day. But I cannot agree with his proposal. The prosecutor has neither the
mandate nor the expertise to make political decisions. If the Court adjusts to
political considerations it will be unfaithful to its own mandate and it will
interfere with the political actors’ mandate. States can make political
considerations and the U.N. Security Council can even decide to suspend
investigations. That is their role. To contribute to peace and security, the Office of
the Prosecutor has to be loyal to its own mandate, it has to hold the legal limits. It
has to investigate the facts with impartiality and apply the law with integrity. It
has to respect the political actors’ prerogatives. Recognizing the role of the U.N.
Security Council, the Office adopted a policy to inform it in advance of the Office
decisions to request arrest warrants allowing the Council to exercise its own
powers.
F. Respect for Jurisdictional Boundaries
In 2002, Goldsmith and Krasner said that experiences with the more
accountable international tribunals in The Hague and Rwanda have shown that
international courts will not be bound by the letter of their governing rules when
justice as they conceive it requires otherwise. 52 The ICC experience shows a
51. William Burke-White, Maximizing the ICC’s Crime Prevention Impact Through Positive
Complementarity and Hard-Nosed Diplomacy, ICC FORUM (Jan. 31, 2014; 10:30 PM),
http://iccforum.com/prevention.
52. Goldsmith & Krasner, supra note 1.
different path: a review of the jurisdictional decisions adopted by the Office of the
Prosecutor and the Chambers during the first decade of activities shows a strict
compliance with the Rome Statute.
VII. ABOUT THE ICC JUDICIAL ACTIVITIES
During the first years of activities, there were fascinating legal debates
including a discussion on the distinction between international and national armed
conflicts, the role of the victims during the proceedings, the duty of protection of
the different organs, the prohibition of proofing, the standards of evidence, and
the modes of liability. I do not have enough time to analyze each of them but I
would like to emphasize that all the judicial debates showed the intentions of the
different organs of the Court to comply with legal standards.
The decision of the judges to stay the proceedings before the beginning of
the Lubanga trial is a good example of the difficulties in applying the innovative
Rome Statute, which blends elements of different legal traditions, while
maintaining the Court’s strict respect for the law. The judges were ready to halt
the first trial of the Court and free Lubanga, but not to compromise the fairness of
the trial. My office was ready to fail in its first case, but not to give up the
application of its standards.
The conflict was produced by the contradiction of two different prosecutorial
duties: maintaining its confidentiality commitment towards information providers
and respecting its obligation to disclose information in its possession that could be
material for the defence.
The investigation in the Lubanga case was conducted when the conflict in
Ituri was ongoing. The Democratic Republic of the Congo national state forces
did not exercise control over the territory and the local forces were affiliated with
the suspects. In order to focus the investigation and manage the security risks for
our investigators and witnesses, the Office collected thousands of documents from
the U.N. and NGOs. Those providers were worried about the security of their
personnel and requested confidentiality under Article 54(3)(e) as a condition of
their supplying the information. This norm established that the prosecutor should
not to disclose, at any stage of the proceedings, documents or information
obtained on the condition of confidentiality and solely for the purpose of
generating new evidence, unless the provider of the information consents. As a
consequence, the prosecution had a strict confidentiality duty.
On the other hand, in accordance with Rule 77 of the Regulations of the
Court, the Office of the Prosecutor shall permit the defense to inspect information
in its possession that is material to the preparation of the defense. The Office of
the Prosecutor, while preparing for disclosure, determined that around ninety-
three of the documents received with the Article 54(3)(c) confidentiality condition
contained information that could be material to the defense’s case and should be
disclosed under Rule 77. Most of the documents were related to the fact that the
Ugandan army was occupying the Ituri region during the time of the alleged
crimes committed by Lubanga, potentially enabling him to use this circumstance
to his defense. The Office was ready to accept this fact and disclosed many other
documents establishing the exact circumstance.
The ninety-three documents could have been considered redundant as similar
information had already been disclosed, but the Office of the Prosecutor informed
the Trial Chamber that these documents with information that could be considered
material for the defense were in its possession. The Office also informed the
Chamber that it was seeking the consent of the information providers to lift the
49
confidentiality condition by the disclosure deadline established by the Chamber.

The prosecution offered to provide summaries of the information without
exposing the underlying sources.
The Trial Chamber requested to review the documents itself. The prosecution
refused to provide the documents because the Chamber did not have a duty to
maintain the confidentiality established by Article 54(3)(e).
On 13 June, 2008, the Trial Chamber decided to impose a stay on the
proceedings and ordered the release of the accused. The Chamber considered that
it had been prevented from exercising its jurisdiction and as a consequence it was
unable to determine whether or not the non-disclosure of this potentially
exculpatory material constituted a breach of the accused's right to a fair trial. The
prosecution appealed, the Appeals Chamber suspended the release of the accused
and later, on 21 October, 2008, rendered its final decision. 53
Finally, the Appeals Chamber decided that the Trial Chamber had to be
allowed to access any material information in possession of the prosecution
which was subject to a confidentiality agreement under Article 54(3)(e) to allow it
to decide whether it had to be disclosed. But it added a critical part: Any Chamber
receiving such information must never order its disclosure without the prior
agreement of the information provider. The Appeals Chamber settled the tension
between the respect for the confidentiality of the information provided under
Article 54(3)(e) and the duty to disclose the information to the defense.
With this legal certainty in place, the prosecution was able to place all the
material in question before the Trial Chamber and the stay was lifted.
The prosecution could have decided that the information about the Ugandan
occupation were duplicative and hence not really material for disclosure. We
knew that the strict application of our internal standard was exposing the Office to
the risk of failure in its very first case. The Chamber could also have taken a less
rigorous approach, trusting that after some time the information providers would
lift the confidentiality requested. But this is a good example of how strictly the
prosecutor and judges applied the law and kept their commitment to a fair
implementation of their own mandates.
VIII. RECOMMENDATIONS FOR THE EXPANSION

OF THE SHADOW OF THE COURT
The goal of the Rome Statute is to end impunity for the most serious crimes
in order to prevent them. In order to maximize this preventative impact, in the
shadow of the Court, legal scholars should focus on the new possibilities offered
by the existence of this innovative institution.
It is time to realize that the model proposed by the United States in 1998 was
indeed adopted. Even before the formal adoption of the American
Servicemembers’ Protection Act (ASPA), U.S. diplomats warned the Security
Council members that they would not authorize peacekeeping operations unless
immunity from ICC prosecutions was granted to U.S. citizens. Nevertheless, in
June of 2002, the U.S. Ambassador, John Negroponte, vetoed a U.N. Security
53. Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06-1486, Judgment on the Appeal of
the Prosecutor Against the Decision of Trial Chamber I entitled “Decision on the
Consequences of Non-disclosure of Exculpatory Materials Covered by Article 54(3)(e)
Agreements and the Application to Stay the Prosecution of the Accused, Together with
Certain Other Issues Raised at the Status Conference on 10 June 2008” (Oct. 21, 2008),
http://www.icc-cpi.int/iccdocs/doc/doc578371.pdf.
Council Resolution seeking to authorize a U.N. police training mission in

Bosnia.54
In 2005, the United States did not veto the Darfur’s U.N. Security Council
referral and its pragmatic foreign policy recognized the legitimacy of the ICC
operating in the territories of states parties. The United States decided that it could
not be hostile to a Court supported by its main allies and took advantage of the
existence of a permanent court to impose justice in Darfur. 55 In 2006, John
Bellinger III, the Secretary of State Legal Advisor stated that “divisiveness over
the ICC distracts from our ability to pursue these common goals” of fighting
genocide and crimes against humanity.56
The U.S. President’s May 2010 National Security Strategy confirmed this
pragmatic position: “[W]e are supporting the ICC’s prosecution of those cases
that advance U.S. interests and values.”57 The theory has to conceptualize the
new practices. It is time to reframe American views.
Yale, a leading university in the United States and in the world, can make a
difference by analysing this complex system. The United States has made clear
that it would not join the Rome Statute, at least not in the near future but it is
interacting with the ICC in numerous ways. In January, 2013, the Senate and the
House agreed to include ICC in the “Reward for justice program.” 58 Yale could
increase the efficiency of the interaction between the United States and other parts
of the international community by providing a global and comprehensive
framework to define common policies for states parties and non-parties to the
Rome Statute. The framework can include stakeholders that usually have
competing goals, such as human rights activists, diplomats, and military officers,
thus improving the protection of victims of violence in Syria or end the genocide
by rape of girls and women in Darfur.
There is an international consensus on the prohibition of these crimes. There
are many consequences of this consensus: (1) There are specific cases showing a
preventative impact. Even militia leaders such as Joseph Kony or Laurent Nkunda
took into consideration the impact of any eventual ICC intervention; (2) States
parties are adopting internal legislation to be able to conduct domestic
proceedings; (3) In addition, armies from all over the word are adjusting their
operational standards, training and rules of engagement to the Rome Statute. This
is the way to control violence. The law makes the difference between a soldier
and a terrorist.
54. See The American Service Members Protection Act, 22 U.S.C. § 7401 (2002), which
mandated that the United States could not (1) cooperate with the court; (2) perform a role in
peacekeeping missions; (3) deliver U.S aid to allies unless they too sign accords to shield U.S.
troops on their soil from being turned over to the court; and it authorized the President to take
action to rescue U.S. service members in custody of the Court.
55. Corrina Heyder, The U.N. Security Council’s Referral of the Crimes in Darfur to the
International Criminal Court in Light of U.S. Opposition to the Court: Implications for the
International Criminal Court’s Functions and Status, 24 BERKELEY J. INT’L LAW 650 (2006).
56. Jess Bravin, U.S. Warms to Hague Tribunal, WALL ST. J., June 14, 2006, http://online
.wsj.com/news/articles/SB115024503087679549.
57. President Barack H. Obama, United States National Security Strategy, WHITE HOUSE (May
2010), http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy
.pdf.
58. Department of State Rewards Program Update and Technical Corrections Acts of 2012, S.
2318, 112th Cong. (passed by Senate, Dec. 18, 2012); H.R. 4077, 112th Cong. (passed by
House, Jan. 02, 2013).
51
This consensus is not yet translated into an automatic or consistent support

for the enforcement of arrest warrants in two different circumstances: when the
indictees are protected by their own militias like the case of Joseph Kony or
Bosco Ntaganda; and when those indicted are members of the government. The
world agreed on “never again” for genocide, but there is no agreement on what to
do to stop President Bashir’s genocide.
The lack of efficiency when dealing with these problems has serious costs in
term of human lives and political stability. Bosco Ntaganda, who was involved
with Lubanga in the crimes committed in Ituri, is now terrorizing civilians and
destabilizing the Kivu region; Joseph Kony and the other two commanders
stopped committing crimes in Uganda and moved the Lord’s Resistance Army
(LRA) to Central African Republic and the Democratic Republic of the Congo.
There they killed more than two thousand civilians and displaced more than four
hundred thousand people. There are four fugitives in the Darfur case, including
the current President of the Sudan, the current Minister of Defense and the current
Governor of South Kordofan. The genocide by rape and the genocidal conditions
created in the Darfur camps against two million five hundred thousand people
have not changed since the judges ruled on the arrest warrant against President
Bashir. Worse, the policies used in Darfur to attack civilians are now being
implemented by the same persons in the Blue Nile and Kordofan regions.
In domestic settings, the congress, the police, the prosecutors and the courts
are the basic institutions to establish law and order. The Rome Statute is building
the same idea internationally: Judicial institutions are created to contribute to
prevent and manage massive violence. But states make decisions on international
matters following their own national interests and political leaders and diplomats
are not used to dealing with Courts in the international scenarios where no
overarching authority forces them to harmonize their practices. Finding creative
solutions for these problems should be the academic priority.
There is no easy solution for these past problems and for new challenges like
the crimes being committed in Syria. The Court’s intervention is affecting and
transforming a very fragmented and primitive international decisionmaking
process. There is no common framework that encapsulates the different political,
humanitarian, military, and judicial measures that should be adopted to manage
conflicts. Just to decide on the intervention of the Court in Darfur or Libya, the
debate included the fifteen members of the U.N. Security Council, national
leaders, NGOs, and regional organizations like the African Union and the Arab
League. Each of them has different interests. The impact of the Court’s
intervention will depend on how the different interests interact.
Arresting a sitting head of State is neither a police operation nor a military
intervention; it requires a process of political marginalization both at the national
and international levels.
The Court’s intervention in ongoing conflicts prompted rather than
interrupted negotiations for peace. There were no peace negotiations when the
prosecution requested the indictment of Ahmed Harun and Ali Kushayb in
February 2007. A negotiation between the African Union and the United Nations
started in April 2007. It failed to achieve progress and it was concluded in June
2008. A month later, in July 2008, the request to issue an arrest warrant against
President Bashir produced a new process of negotiation led by the Arab League
and the African Union in coordination with the United Nations.
There were no peace negotiations when the Court issued arrest warrants
against Joseph Kony. The Court intervention triggered the Juba talks. The
issuance of arrest warrants against LRA leaders led to a formal agreement
between the Office and the Government of the Sudan to implement them. This
forced Joseph Kony to leave his safe heaven in Southern Sudan and establish a
camp in Garamba Park, Democratic Republic of the Congo. This move, the
Comprehensive Peace Agreement between North and South Sudan, and the
efforts deployed by the Ugandan army, contributed to end the massive atrocities
that were affecting Northern Uganda for twenty years. The Juba talks
consolidated the end of massive violence in Northern Uganda but allowed Joseph
Kony to regroup, collect money from the international community, buy weapons
and launch massive attacks against the civilian population in the Democratic
Republic of the Congo, Central African Republic and Southern Sudan. It is
important to analyse when the prospect for negotiations are used as an excuse to
regain power or to commit new atrocities.
There is also a need to develop new more sophisticated strategies to carry out
negotiations of conflicts, including negotiation to isolate the leaders. That
happened in Libya. Armies should include in their planning the tactics to arrest
individuals, including restrictions on the use of ground forces.
IX. CONCLUSION
In 2010, President Obama recognized that “sixty-six years since the

Holocaust and seventeen years after Rwanda, the United States still lacks a
comprehensive policy framework and a corresponding interagency mechanism for
preventing and responding to mass atrocities and genocide.”59 He also stated that
preventing mass atrocities is a responsibility that all nations share.
This twenty-first century challenge is presented by Samuel Moyn in his
fascinating book: The Last Utopia: Human Rights in History.60 He invites us to
acknowledge how recent and contingent human rights are. Moyn explains that
because of the human rights movement’s success and the failure of other utopias,
human rights advocates are facing a drama of fundamental transformation: from
an anti-politics ideal to a political program. He thinks that the main difficulty is
that the human rights movement has two competing goals: preventing
catastrophes through minimalistic ethical norms and building utopia through
maximalist political vision.
Today, I suggest that the Rome Statute could be a key component of the
comprehensive framework envisioned by President Obama. Its 121 state parties
are ready to share the responsibility for preventing mass atrocities. They already
ratified the Rome Statute to end the impunity of the most serious crimes of
international concern and to contribute to their prevention.
The Rome Statute could also be the answer to Moyn’s dilemma: It could
prevent catastrophes through its minimalistic reach focused just on atrocity crimes
and setting apart other human right violations and build utopia through a
maximalist program establishing a supranational protection of the rights of
victims of massive atrocities.
Justice Robert Jackson said: “Advancement of civilization does not diminish,
it rather multiplies the occasions and causes of serious dispute among States.”
This was the vision he presented during his opening arguments at Nuremberg:
59. Office of the Press Secretary, FACT SHEET: President Obama Directs New Steps to Prevent
Mass Atrocities and Impose Consequences on Serious Human Rights Violators, WHITE
HOUSE (Aug. 4, 2011), http://www.whitehouse.gov/the-press-office/2011/08/04/fact-sheet-
president-obama-directs-new-steps-prevent-mass-atrocities-and.
60. SAMUEL MOYN, THE LAST UTOPIA: HUMAN RIGHTS IN HISTORY (2010).
53
“We are able to do away with domestic tyranny and violence and aggression by
those in power against the rights of their own people only when we make all men
answerable to the law.”61
That is the goal the Rome Statute that I presented at the conclusion of my
swearing-in speech in 2003: “We must learn: there is no safe haven for life and
freedom if we fail to protect the rights of any person in any country of the
world”.62
61. Robert H. Jackson, The Rule of Law Among Nations, 31 A.B.A. J. 290, 291 (1945).
62. Luis Moreno Ocampo, Remarks at the Ceremony for the Solemn Undertaking of the Chief
Prosecutor of the International Criminal Court (June 16, 2003), http://www.iccnow
.org/documents/MorenoOcampo16June03.pdf.

Luis Moreno Ocampo The Challenges of The Inaugural Years YJILO

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The Yale Journal of International Law Online

The Office of the Chief Prosecutor:

I am honored to be the Inaugural Gruber Distinguished Lecturer in Global

I. THE INTERNATIONAL CRIMINAL COURT AS PART OF THE

serious crimes of concern to the international community as a whole in order to

II. THE ROME STATUTE AS “THE EMPIRE OF THE LAW”

Professor Jose Alvarez has presented two compelling and opposite

Figure 1: The State Parties to the Rome Statute7

III. THE ROME STATUTE IN MOTION

In 2003, eighteen judges and I, as the prosecutor, received the responsibility

A. The Functioning of the “Empire of the Law”

jurisdiction and the Court independently opened investigations in Kenya.16 The

Republic (Jan. 7, 2005), http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press

B. The Functioning of the “Law of the Empire”

23. Prosecutor v. Katanga, Case No. ICC-01/04-01/07-3319, Decision on the Implementation of

IV. THE SHADOW OF THE COURT

discuss U.S. ratification. The challenge is to better integrate political negotiations

V. THE ANALYSIS OF THE ICC’S JURISDICTIONAL DECISIONS

As I said, my goal today is to transform the Court’s experiences into

VI. THE ICC’S JURISDICTIONAL ISSUES

A. The Decision to Open the First Investigation

B. The Policy of Inviting Referrals

C. The Gravity Threshold

D. The Complementarity Test

On 19 November, 2011, Libyan fighters from the Zintan brigades captured

44. Prosecutor v. Gaddafi, Case No. ICC-01/11-01/11-130-Red, Application on Behalf of the

E. The Interest of Justice Criterion

F. Respect for Jurisdictional Boundaries

VII. ABOUT THE ICC JUDICIAL ACTIVITIES

confidentiality condition by the disclosure deadline established by the Chamber.

VIII. RECOMMENDATIONS FOR THE EXPANSION

Council Resolution seeking to authorize a U.N. police training mission in

This consensus is not yet translated into an automatic or consistent support

In 2010, President Obama recognized that “sixty-six years since the

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