The ICC at Georgetown Law

, Malcolm A. Kline, Leave a comment

If you wonder where new bureaucracies come from, look at their nurseries—colleges and universities. That is where such notions not only are procreated but polished and promoted as well.

Knowing that their birthplace is usually on a college campus also aids in understanding why they usually fall prey to the law of unintended consequences. Paper theories usually don’t work out even as well as equations worked out on the back of cocktail napkins.

An example of the latter is the Reagan tax cuts that gave the United States a decade of record economic growth after 10 years of stagflation. An example of the former is the International Criminal Court (ICC).

Sometimes such ideas even look good out of the gate, although they may quickly give way to mission creep. Even the United Nations in its infancy could take credit for ratifying the state of Israel and okaying America’s defense of South Korea from communist attacks.

Ironically, the ICC is in part an attempt to remedy failures of the UN. “On September 18, a foreign inquest from the Sudan met at the UN and no one discussed justice,” ICC prosecutor Luis Moreno-Ocampo said in a seminar held at Georgetown Law on April 8.

Of course, public officials and scholars would try to ameliorate the failures of one multilateral institution by creating another. “The ICC is not just a court,” Dr. Moreno-Ocampo said at the seminar that was co-sponsored by the Center for American Progress. “It’s a system of justice.”

Dr. Moreno-Ocampo’s predecessor counted 180 people from 40 countries working in the Hague, the ICC headquarters, during his tenure there earlier this decade. The ICC’s goal in the Sudan is to “stop crimes now and prevent future crimes in Darfur,” according to Dr. Moreno-Ocampo. “It’s been 60 years since the Nuremburg trials and the landmark case did not produce a new institution.”

“The Balkans and Ruwanda prove why you need an ICC,” in Dr. Moreno-Ocampo’s view. Certainly, the focus of Dr. Moreno-Ocampo’s work, prosecuting African dictators, is one that many would laud.

“As a result of the ICC presence, the Democratic Republic of the Congo is using fewer child soldiers, although partly as a result of the ICC investigation of the FARC in Colombia using child soldiers,” Dr. Moreno-Ocampo noted. Previously, before joining the ICC, Dr. Moreno-Ocampo had prosecuted military junta leaders in his native Argentina.

“The ICC is the court of last resort to prosecute heinous crimes,” Dr. Moreno-Ocampo says of his current place of employment. Like the UN and the more recently created European Union, the ICC is poised to move well beyond its original advertisement.
With its “Principle of Complementarity” the ICC could “extend to the home countries of state parties of its treaty,” Dr. Moreno-Ocampo explains. There are 120 such nations.

“It could extend all over the world,” Dr. Moreno-Ocampo admits. In the last five years, since June 2003, the ICC has received 472 communications.

Also, currently, “The ICC can only review crimes that occurred after July 1, 2002,” Dr. Moreno-Ocampo said. The bulk of the complaints were outside the ICC’s jurisdiction but they are meeting in 2009 to vote on whether to extend that purview.

The timing is curious. That would leave the portentous vote pending until the winner of the next presidential election is in office.

Of the three front-runners, two are implacably enamored of the ICC and the third is a question mark. Moreover, the lame duck president who has, thus far, rejected the ICC has, in his second term, reversed himself on many of his first term policies, most notably those with an international import that involve the UN.

Signing onto the Law of the Sea Treaty is but one of these, itself a creation of the UN whose practices he steadfastly opposed before his second election. Could the International House of Criminal Courts be next?

Mal Kline is the Executive Director of Accuracy in Academia.