Several years ago, I gave a speech where I stated that prosecutor who does not consider politics and diplomacy in their prosecutorial decision-making is naive. I still stand by those remarks. The basis for the statement was to shift the focus not on the process of prosecution at the international level, but on the victims themselves. I repeatedly told my staff in the Office of the Prosecutor at the Special Court for Sierra Leone that all that we are doing is for and about the victims of the ten-year horror that was the civil war in West Africa.
When one shifts this focus to the victims it becomes clear that there are several factors that come into play for an international prosecutor as they consider a prosecution plan to account for an atrocity and to do whatever they can to seek that justice. These factors include the law to be sure, but also politics, diplomacy, custom and practical implications of a possible series of indictments. Within ethical bound of the law, an international prosecutor seeks a just result, free of bias and favor.
International tribunals are creatures of politics. Created from a geopolitical event and products of political compromise, tribunals have political DNA baked into their systems. The bright red thread of international criminal law is politics. Leave out the political dimension in a prosecution strategy and a tribunal may have challenges that could harm the process of accountability for the victims of an atrocity.
Throughout my time in West Africa I took in all of the above factors and focused on politics. Now it is important to understand that this is politics with a small "p." Most creative statutes for international courts and tribunals have a provision which clearly says that the prosecutor cannot seek favor [PDF] or be influenced by outside entities in their decisions on who to investigate and prosecute. That is not what we are talking about here. We are talking about engaging politicians and diplomats in an ongoing dialog on what is best for a country, a region and even internationally. Listening to a politician or diplomat's views on the political situation in the region, seeking their perspectives on what happened to that region shows to the politicians and diplomats that any prosecution plan is deliberative, careful, balanced taking in the political, diplomatic, cultural, practical and legal ramifications of a prosecution plan. Showing local, regional, and international politicians and diplomats a little respect goes a long way in seeking justice for victims of atrocity.
The International Criminal Court (ICC), the world's permanent court set up to prosecute the most egregious, must always take into consideration the factors discussed above—particularly politics. This important court exists in a political world driven by political considerations. Nation-states always consider the political ramifications of their international and national security decisions. When an outside entity threatens that security, a nation-state will react to protect its interests using whatever means necessary, hopefully within the law.
Recent decisions by state-party to the Rome Statute [PDF] to withdraw from the treaty and the paradigm of accountability for victims of atrocity reflects some earlier decisions made by the ICC that have festered into open defiance. This is not healthy for the evolution of the rule of law internationally and justice for victims specifically.
The ICC is an institution worth saving. Its supporters must do all that they can to ensure its viability to including its political viability. The current and former Chief Prosecutors are talented and capable colleagues and friends. They are certainly not naïve. The recent initiative by the current Chief Prosecutor, Fatou Bensouda in issuing her Policy Paper on Case Selection and Prioritization [PDF] this autumn is a step in the right direction.
However, as a long-term supporter of the ICC and for justice for victims, it must be pointed out that the court has not done a good job in factoring the political ramifications of its prosecutorial decisions. The Sudan and Kenya indictments are outstanding examples as well as a decision to investigate alleged war crimes violations in Afghanistan perpetrated by US armed forces just as a new, and more likely less supportive, administration comes into power. One cannot imagine the new Trump administration will take this lightly or lying down. The ICC should not get into a situation where the new president takes this Afghanistan inquiry personally.
It is apparent that the Office of the Prosecutor is aware of these points. I believe that there is a renewed understanding of the important role politics plays in seeking justice for victims. As a friend of the court I want them to succeed. I urge the court to factor in politics in their policies and plans. If not, then we may see a further deterioration of the ICC's stature in the world and further withdrawals, possibly a fatal blow to mankind's only permanent ability to seek justice for the victims of atrocity. I am hopeful.
David M. Crane is a Professor at Syracuse University College of Law. He was the former Chief Prosecutor of the International War Crimes Tribunal, the Special Court for Sierra Leone. He is also a former Contributing Editor for JURIST.
Suggested citation: David M. Crane, Fatal Attraction—The International Criminal Court and Politics , JURIST - Academic Commentary, Dec. 1, 2016, http://jurist.org/forum/2016/11/David-Crane-fatal-attraction-the-international-criminal-court-and-politics.php
This article was prepared for publication by Krista Grobelny, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at