In 2003, 78 nations gave me the authority, as the Chief Prosecutor, to trigger the International Criminal Court (ICC) intervention in their territory.
I had to decide for the first time when and where to trigger the ICC. Should the Court open investigations in the Democratic Republic of Congo or Colombia? Did Prime Minister Blair’s decision to intervene in Iraq allow the Court to open an investigation against President Bush?
We had no benchmark. Political leaders in post-Nazi Germany, Yugoslavia, and Rwanda decided the international criminal intervention in those nations. The Rome Statute created a different model. My mission was to establish an Office of the Prosecutor to implement a judicial mandate in what was a political field.
Each of our decisions to launch the Court intervention was in strict compliance with the law and confirmed by the judges. However, they triggered heated debates. No single framework exists to harmonize justice demands, political decisions, military operations, humanitarian assistance, peace negotiations, and court interventions. I perceived the lack of a common criterion to manage transnational violence.
War and Justice in the 21st Century: an overview
Since the end of my tenure in 2012, I have been working on a book to transform my unique experience into valuable data. I was a decision-maker and a privileged witness. I don’t have a thesis to prove. The book describes our office standards, the facts, and the role of other actors in 17 different situations under preliminary examination.
“My mission was to establish an Office of the Prosecutor to implement a judicial mandate in what was a political field.”
I aim to contribute to the study of an innovative and unprecedented legal system, facilitate a dialogue between experts and scholars, discuss new tactics to manage conflicts, and improve the teaching of international law and international relations.
The book’s first part introduces the Rome Statute and its relationship with the War on Terror, the circumstances of my appointment, and our strategy to build the Office of the Prosecutor’s foundations. Taking the Jus ad Bellum classification as an analogy, I proposed to label the norms defining the intervention of International Criminal justice into sovereign states as Jus ad Curiam.
Second part: our decisions to open investigations in four different states parties (Democratic Republic of Congo, Uganda, Central African Republic, and Kenya), the discussion on peace negotiations and the interest of justice, and our preliminary examinations in nine situations under our treaty jurisdiction (Venezuela, UK personnel involved in Iraq, Palestine, Guinea, Nigeria, Honduras, Colombia, Korea, and Georgia).
Third part: the ICC’s interaction with the UN Security Council in states non-parties like Iraq, Sudan, Libya, Ivory Coast, and Syria, and with the US in the Afghanistan situation.
The fourth part includes a summary of the Office of the Prosecutor’s Jus ad Curiam practice, the War on Terror’s policy redefining jus ad Bellum, including military interventions in countries not at war with the US, and the UN Security Council’s jus ad Curiam and jus ad Bellum decisions.
I also offer my observations: the outcomes of normative conflicts are in a consequential blind spot.
No chaos, just complexity: a fragmented international legal system
The operational international legal order includes multiple subsystems working simultaneously, conferring power to various authorities, and prescribing different and sometimes opposite solutions to the same case.
“Still, there is no comprehensive academic field integrating the different authorities’ decisions.”
Anne Marie Slaughter proposed a “New World order” based on networks and David Kennedy explained how decisions are made: “The internationalization of politics means the legalization of politics. Every agent of the state, of the city, of the region, acts and interacts on the basis of delegated powers, through the instruments of decision and rule and judgment.”
Still, there is no comprehensive academic field integrating the different authorities’ decisions. International relations, political science, international law, international criminal law, humanitarian law, and military strategy scholars analyze variables in isolation. They deny fundamental problems to protect their field boundaries. Knowledge is produced within “echo chambers” according to nationality and expertise.
The International Law Commission’s report on Fragmentation described the evolution “from a world fragmented into sovereign States,” integrated under the UN Security Council on international peace and security “to a world fragmented into specialized ‘regimes.’”
The Rome Statute and the War on Terror are the twenty-first century “specialized regimes” to manage international crimes and terrorism. They are two antagonistic legal models conferring power to different authorities and influencing states and the UN Security Council decisions.
Quoting French Professor Mireille Delmas-Marty, “these are indeed legal, and therefore normative, interactions.” There is no chaos, just complexity.
From my office at The Hague, I perceived how other authorities, following their interests, selected the norms to apply. Perpetrators of massive atrocities followed instructions and rules, and diplomats and intelligence services worked to consecrate their impunity.
“War crimes, crimes against humanity, and aggression crimes are the consequence of a fragmented and contradictory international legal system.”
The crimes examined during my tenure were not the direct consequence of individual cruelty or the lack of respect for the norms. The leaders’ commands triggered institutions to act.
The decision to launch the War on Terror promoted efforts to protect the US troops and its allies and became a critical obstacle to international justice. The aggression crime committed in Ukraine exacerbated the problem.
Obstructing justice would be regarded as a crime at the national level. Still, political leaders have the legal authority to interfere with criminal justice in the international field and to instruct diplomats and intelligence agencies to do it.
War crimes, crimes against humanity, and aggression crimes are the consequence of a fragmented and contradictory international legal system. There is a failure by design.