Reasonable Doubts

The International Criminal Court is already drawing heat. Is it a triumph, or a doomed proposition?

Love it or hate it, the International Criminal Court will be up and running in the new year. Still from Do The Right Thing, courtesy of Universal Pictures

It’s almost a surprise to find that The Hague, seat of government for the Netherlands, is a functioning city with shops and schools and an electric tram railway. In the imagination, it can seem like one big courthouse, and with good reason. Even the Dutch refer to it as the “legal capital of the world.” For almost sixty years, it has been home to the United Nations’ International Court of Justice. For the past ten years, it has hosted the International Criminal Tribunal for the former Yugoslavia. And now, after a five-year setting-up period, it is about to welcome the newly formed International Criminal Court (ICC) to its constellation of legal institutions.

On a cool August day of heavy overcast, I walk along a high fence in front of a glass and steel office tower, finally locating the gate through which to enter an austere lobby peopled by security guards. I show my passport, have my bag scanned, and wait for Lotte Akkerman, personal assistant to the president of the ICC, to be called down to escort me through a pair of electronic doors and up a fast elevator. The building has been provided by the Dutch government for use by the ICC until 2010, when a new, permanent complex should be ready. Once we reach our floor, Akkerman leads me through a rabbit’s warren of cubicles until we arrive at a corner office where a long conference table faces a bank of windows. There, I’m introduced to the court’s freshly elected president, a fifty-six-year-old career diplomat from Canada named Philippe Kirsch.

For many, the creation of the ICC is an event of millennial proportions, a triumph of justice over force. While the International Court of Justice handles civil disputes between countries, the ICC will try individuals charged with responsibility for the worst crimes committed in the heat of war. It intends to be, as Justice Jackson wrote, portentously, of the Nuremberg trials at the end of World War II, “the most significant tribute that power has ever paid to reason.”

A global rule of law has been the dream of one-worlders for over a century. In 1899, The Hague played host to a peace congress called by the Czar of Russia with the aim of putting an end to war and making international justice paramount to force. That the effort failed (it was entered into with deep cynicism by most participants), and that the next half century saw millions perish in the most grisly fashion seemed only to enhance the idea. In an ideal world, law—rather than force—would resolve disputes and, should war break out, the atrocities that are its inevitable by-product would be dealt with in court, just as murder or assault is in civil society.

In 1948, with the horrors of the Holocaust fresh in everyone’s memory, the General Assembly of the recently established UN labelled genocide “a crime under international law” and invited the International Law Commission to study the setting up of a court to try persons charged with it. Fifty years later, in 1998, a month-long conference in Rome finally produced a treaty that led to the creation of the ICC.

There have, in fact, been more than half a century of ad hoc initiatives of this nature, going back to the Nuremberg trials and including the more recent tribunals established by the Security Council in the wake of conflicts in Rwanda, Sierra Leone, and Yugoslavia. One of the major arguments that ICC proponents make in its favour is that it will supplant these initiatives; all future perpetrators of acts of violence that are against international law—ethnic cleansing, rape, civilians brutalized by armed conflict, the use of children as soldiers, and, the most chilling of them all, genocide—will have to answer to ICC prosecutors and judges. The court believes it will become a permanent part of the way the world will adjudicate itself.

The ICC has come into being more quickly than anyone thought. “People expected ten, fifteen, twenty years,” says Judge Kirsch, who has a law degree from the Université de Montréal and a resumé densely packed with delegation chairmanships and high-level diplomatic appointments (he was once ambassador to Sweden). Before being elected president, he was already deeply immersed in the court, chairing the committee appointed to set it up under the Rome treaty. The committee’s work was a delicate business: defining what would constitute crimes, setting intricate procedures and rules of evidence, and securing agreement from as many nations as possible. One lawyer from Nigeria told me, “It was good we had a diplomat doing the job.”

But support was fluid, difficult to nail down. Forty-seven countries including, most conspicuously, the United States, refused to ratify the court after signing its original statute. But the fact that ninety-two countries have ratified it has prompted the UN to give it the green light.

The timetable will also be driven by the prosecutor. A mere four months after the chief prosecutor, Luis Moreno-Ocampo from Argentina, was sworn in last April, he had received more than 500 “communications” recommending possible indictments. These submissions run the gamut from reasoned arguments to cursory denunciations and include a forty-seven-page affidavit from the Athens Bar Association demanding that British prime minister Tony Blair be charged with crimes against humanity. The prosecutor’s staff will have to go through them all, deciding which to discard and which might lead to the ICC’s first indictments. All of this means that Kirsch, who as president is not only a judge but the senior officer of the court, will have to hustle to get his staff settled and renovations done so that by January he will have at least a pre-trial chamber built. “Obviously,” he says, “there are great expectations of the court.”

Were you in charge of setting up such a lofty and idealistic institution, David Jacobs would be the sort of person you’d expect to support it. Born into a Jewish family of physicians in Cardiff, Wales, who moved him when still a young boy to Toronto, Jacobs is a lawyer with a left-wing bent and an internationalist outlook. He has been active in the New Democratic Party, is a former chair of the Constitutional and Civil Liberties Section of the Canadian Bar Association, and was a public critic of the war in Iraq.

In 2000, inspired by a colleague who’d done the same, Jacobs put his name forward for the roster of defence lawyers for the tribunal set up after the 1994 bloodbath in the tiny African country of Rwanda. He was almost fifty and ready to put his Canadian work on hold in order to travel back and forth to Arusha, Tanzania, where the tribunal was headquartered. He was eager to be connected to the new, rapidly globalizing world. Soon he had two clients, a beer importer named George Rutaganda, who was appealing his genocide conviction, and Gerard Ntakirutimana, a young doctor who had lost one of his American lawyers to illness. Jacobs plunged into their cases.

Thirty months later, after countless hours of work and over a dozen trips to Africa, his zeal has faded. He has lost both his appeal and the trial, though he is now appealing the latter. In his office in Toronto, he pushes heavy boxes of files and affidavits out of the way, sets aside luggage still unpacked from a recent trip, and sighs with a kind of frustration that is half bewilderment and half exasperated fury. Not only has he lost his cases, he’s endured, he complains, practices and methods contrary to everything he’d come to take for granted and hold dear in Canada.

It’s noteworthy that Jacobs was acting as a defence attorney. University of Ottawa professor David Paciocco, who also worked on the Rutaganda appeal, argues that defence lawyers have a particular burden to bear. Their job is “to ensure that their clients are not wrongfully convicted and that the system is fair to the accused.” This, he says, makes them acutely aware of the problems in any system.

Paciocco’s boyish demeanour, when we meet for lunch in an Ottawa café, contrasts with his considerable gravitas in the field of legal writing and thinking. He has been cited in at least nineteen Supreme Court of Canada decisions and enjoys a high reputation for his 1999 book, Getting Away With Murder, which argues that the justice system needs to be more responsive to issues that most anger the public.

Through his interest in criminal law, Paciocco became intrigued by international trials. During a sabbatical year in 2001, he considered applying for a position as a prosecutor at the Yugoslav Tribunal in The Hague. Instead, he accepted an invitation from Jacobs and ended up at the Tribunal for Rwanda, working for the defence.

The move altered his views of international justice. “I believe I went with an open mind, so I was surprised to come to at least the provisional conclusions I’ve come to,” he says. “It was not the perspective I expected. I was able to see things I wouldn’t have seen as a prosecutor.”

In a paper delivered earlier this year to the Canadian Institute for the Administration of Justice, Paciocco acknowledged the conventional wisdom (“There is simply no basis for challenging the idea of international criminal law,” he wrote, “any more than there is a basis for challenging the ideas of peace, co-operation, compassion and justice”), but then he brought his personal dismay forward: “My experience has left me uncertain as to whether international criminal justice, as opposed to international criminal law, is even possible.”

Portraits by Steven Fistell
Portraits by Steven Fistell The judges: Top Row, Left to Right: Philippe Kirsch, Canada; Karl T. Hudson-Phillips, Trinidad and Tobago; Erkki Kourula, Finland; Sang-hyun Song, Republic of Korea; Elizabeth Odio Benito, Costa Rica; Anita Usacka, Latvia; Mauro Politi, Italy; Sylvia Steiner, Brazil; Navanethem Pillay, South Africa. Bottom Row, Left to Right: Sir Adrian Fulford, United Kingdom; Claude Jorda, France; Fatoumata Dembele Diarra, Mali; René Blattmann, Bolivia; Hans-Peter Kaul, Germany; Akua Kuenyehia, Ghana; Maureen Harding Clark, Ireland; Tuiloma Neroni Slade, Samoa; georghios M. Pikis, Cyprus.

As the ICC rolls inexorably into being, two camps have formed. On one side are the optimists, firm in their belief that the very creation of such a court is long overdue and that whatever flaws it might have are worth living with. On the other side are the skeptics who see the devil in the details. If the court is established at the expense of hard-won principles of law and justice, they say, then the cost will have been too high.

David Paciocco is one of the pessimists. His criticism falls into several categories, three of which stand out. These are: concerns about the rights of defendants in such a highly charged environment; politics intruding on the law; and concerns about how the world’s two dominant legal and judicial systems can possibly find a way to harmonize in the international environment.

Although the ICC is supposed to replace the need for specific international criminal tribunals, it is also their child—possessing, if you like, their genetic code. So those who have criticisms about the current tribunals wonder how the new court will rectify what they see as these institutions’ short-comings. Many fear it won’t.

One of David Jacobs’s problems was that his clients lost. But his question is, did they ever have a chance? All through the process, he says, the defence gets short-changed, from financial resources (by his own estimate, only eight percent of the Rwanda Tribunal’s annual budget of $100 million was earmarked for the defence), the slowness with which bills were paid (at one point, he says, he had to mortgage his house in Toronto while he waited for long overdue fee payments), to the general public prejudice against anyone charged with such horrendous crimes. Prestigious law schools scramble to assist the prosecution; no such help is offered to the defence. In the trials themselves, as prosecutors step forward with indictments concerning the most heinous crimes imaginable, an Alice-in-Wonderland atmosphere sets in, making things extraordinarily difficult for the defence. “It’s a problem,” Jacobs muses. “The hugeness and horror of what people are accused of and what has happened works to alter all perspective. The charges are so serious that the court lowers its guard in the face of prosecution evidence of a quality that wouldn’t be accepted in a Canadian court for even a shoplifting case.”

This could be taken as a kind of sour grapes until Jacobs actually takes you through the details of the indictments and the judgments. For instance, it was charged that his client, the doctor, may have shot three people, “though there was,” Jacobs says, “no forensic evidence, no bodies, and, in one case, no evidence that such a person as the victim ever existed.” The allegations came from a single witness and in two of the cases, according to Jacobs, those allegations were not contained in the prosecution’s prior statements. In the end, however, his client was convicted not of murder or manslaughter, but of genocide—the worst of all possible crimes, a stigma that he and his family will carry forever, even after he is released from his twenty-five-year sentence. In the case of the beer salesman, Rutaganda, Jacobs and Paciocco argued successfully to get the appeal court of the Rwanda Tribunal to overturn his conviction for a hands-on killing because of the contradictory testimony of two witnesses, but the court upheld a life sentence for genocide anyway.

One would be right to be skeptical about anything a lawyer has to say about the innocence of his clients, but Jacobs has been dogged on this point, holding out persistently in every conversation we’ve had over a year and a half. “These men,” he says, “did not do the acts they were accused of.”

“In a Canadian court,” Paciocco argues, “I could have got the Rutaganda decision overturned a hundred different ways.”

If these are truly wide-spread deficiencies in the courts, is it just a matter of constraints that exist to prevent slick lawyers from getting bad criminals off? Or is fundamental justice being sacrificed in the name of some higher ideal? One of the standard strategies of the defence in a Canadian, American, or British trial is to trap a witness into inconsistencies, thereby casting doubt on his or her entire testimony. But at the tribunals, Jacobs discovered, this was not possible. The judges, he says, appeared willing to ascribe inconsistencies in witness testimony to traumas the witnesses may have suffered during the events, leaving the defence little to stand on. “This damn court can’t tell the difference if people are lying,” Jacobs complains. “‘He’s traumatized, he’s a victim,’ not ‘he’s a liar or too confused to be relied on.’” One witness became confused about the number of his family members who had been killed during the massacres. Another changed his story three times. “Afterwards the judge says, ‘Thank you for your courage in saving your child.’ When she says that,” Jacobs remarks, “the case is over.”

It boils down, in Jacobs’s opinion, to the kind of battle where politics trumps law. “The international court system,” he argues, “attracts the kinds of people who are good at making broad pronouncements, but unfortunately, less good at the elementary task of sorting through the credibility of evidence and playing referee between the competing sides of prosecution and defence.”

And so the one-time internationalist has changed his mind. “I’m completely opposed to [the ICC]. It’s a good idea in the abstract, but once you get down to the real world, you find it’s highly political. You pretend you’ve got something that’s possible when what you’ve got in reality is political and dangerous. There’s no level at which these tribunals work at all,” he says glumly. “It’s a horror show.”

As if to underline this point, in September, three judges of the Canadian Federal Court of Appeal upheld the request of a former Rwandan goverment official, Léon Mugesera, to avoid deportation. In 1992, Mugesera, then in Rwanda, made a speech that politicians and human-rights activists claimed was part of the incitement to the genocide that happened two years later. When he and his family fled to Canada, some of these groups organized to get him sent back to face the music. The Canadian Court of Appeal, however, not only ruled that his speech was merely patriotic, it also appeared to go out of its way to scold the activists of New York-based Human Rights Watch for their bias and aggressiveness in denouncing Mugesera. For Jacobs, this decision confirmed his frustrations. “That shows you what you get when you have a real court looking closely at the evidence,” he said.

Back in The Hague, Judge Kirsch defended his court. “In principle, the rights of the accused,” he argued, “are perfectly protected by the statute. I don’t think that is an issue.” As for the independence of his judges: “Public opinion has nothing to do with the way they think; they think on the basis of the evidence.”

David Paciocco would disagree. “The way you see yourself is what matters,” he declares. “If you’re a judge and you see yourself as responsible for eradicating crime in order to preserve peace and harmony, you’re a prosecuting judge. In some traditions, that’s accepted, but [for] somebody raised in the Canadian, U.S., or British systems, it’s anathema, a profound insult to our concept of justice. We set up our courts to adjudicate allegations; the Rwanda Tribunal [and by extension the ICC] was set up ‘to prosecute war criminals.’”

The question might well be not what is the ideal form of such trials, but what do they actually accomplish? On a ride through The Hague, my taxi driver, pointing to some high brick walls, announced proudly, “There’s our biggest prison, where they’re keeping Milosevic.” The International Criminal Tribunal for the former Yugoslavia (icty) has been operating since 1997 in the handsome converted headquarters of a Dutch insurance company. Though a parade of indicted suspects from both the Bosnian and Kosovo episodes of Yugoslavia’s bloody civil strife of the 1990s have crossed its stage (thirty-eight tried, five of these acquitted, fifty-one on trial or in detention, seventeen warrants out for accused still at large), the prize catch and the centrepiece has always been the former president himself, Slobodan Milosevic.

One morning, bright and early, I was at the court negotiating two phalanxes of security. At last, clutching my pink visitor’s ticket, I climbed a marble staircase to the visitors’ and press gallery. Beyond its bullet-proof glass wall was something that could easily have been a theatre set or a television studio: at centre-stage, a panel of three red-sashed judges on a blonde wood dais facing the witness of the day, whose back was to the audience; on the far right, the prosecutors, and at far left, the accused.

Though he looms large in recent history, Milosevic, in the flesh, is quite small, barely reaching the shoulders of his burly guards. We’d been told he was sick, but this morning he appeared to have good colour, his snowy white hair brushed into the famous pompadour. The witness, on his second day of testimony, was Colonel Colm Doyle, a military man, also with white hair and a broad Irish accent, who had been chief of the EU monitoring mission in 1992 when Sarajevo was under siege. The prosecutor (in the thirty-eighth week of the trial, the prosecution was still making its case) finished his questioning and turned Col. Doyle over to Milosevic who, having declined a lawyer of his own, is defending himself. This is something that compels the tribunal of three judges, Patrick Robinson from Jamaica, O-gon Kwon from South Korea, and, from the U.K., presiding judge Richard May, to listen to him and deal directly with him instead of with an intervening counsel.

Any who’ve followed this tribunal, even through clips on television news, will have noted that the judges, or certainly the presiding judge (who, in his days as a British politician ran for Labour against Margaret Thatcher), can’t stand the defendant. Milosevic returns the attitude; when the “all rise” came for a recess, he was the very last to pull himself languidly to his feet, having put off the gesture until the judges were almost out of the room.

Later, as he began his cross examination, Judge Kwon demonstratively cleaned his glasses, Judge May began fussily sorting papers on his desk, bringing out his stapler and setting to work. Finally, May couldn’t hold himself back. “Just a moment,” he barked. “The witness can’t answer long speeches.”

The defendant looked up. He appeared determined to maintain his cool. But then he had a great deal at stake. He began to read from a newspaper article, clipped from some decade-old London Independent, a few seconds into which Judge May again interrupted him: “Alright, Mr. Milosevic, I’m not going to allow you to go on reading. You’re not going to read a whole document out unless it’s relevant to the witness’s evidence. If you want to call [the journalist], you can.”

Milosevic: (translated through headphones from Serbo-Croatian to English) “I intend to do that, Mr. May, don’t worry.”

And so it went.

Canadian trial lawyer Edward Greenspan described the Milosevic trial in the National Post (March 2002) as “a lynching” and explained later that he would never dignify with his presence “a court where the outcome is so pre-determined.” I found myself, however, thinking of the spectacle as something else, a kind of old-fashioned European blood sport: a bear baiting. The punishment of Slobodan Milosevic is not only something that will come in the future; since all the accusers from his past are paraded one by one in front of him, this tribunal itself is his punishment. But the extravagantly expensive trial (the Yugoslav Tribunal has a staff of 1,248 and a budget for 2002–2003 of $223 million, about $4 million per defendant) is also his moment. It has, perhaps unwittingly and certainly to the undisguised fury of his judges, given Milosevic an opportunity—one that he uses vigorously—to produce his side of the story and to grandstand for the folks back home. I was told that, in the Balkan region, the trial is extensively reported through television and newspapers, though it goes without saying that it is perceived in very different ways in different parts of the former Yugoslavia. In Serbia and Montenegro, for example, the trial is seen as anti-Serb.

The anger of civilized people at horrific events they have seen or heard about surely requires a civilized outlet. But because the trials are about events charged not only with emotion but with politics, politics invariably continues into the trial. Philippe Kirsch took pains to underline his belief that one of the great values of such courts is that they can defuse the politics by shifting the burden of guilt from groups to individuals. “So, for instance,” he said, “I have not been abused by an ethnic group, I have been abused by individuals who are now being punished for it.”

But whether the process can be seen that cleanly by everyone is doubtful. The accusation, the indictment, and the prosecution (if not the judgement) is viewed, certainly by those with an interest in it, as the continuation of a conflict that—no matter how awful and violent—was, at its roots, political. Those who stand behind the Rwandan defendants (invariably Hutus) argue that what the world has labelled a pre-planned genocide was not a genocide per se, but, rather, anarchic chaos, an avalanche of bad acts not directed by their government but occurring in the absence of order after their government had collapsed. The prosecutions, they assert, are one-sided; the regime of Tutsi strongman Paul Kagami, they charge, pulls the strings of the UN prosecutor. Likewise, the tribunal in The Hague has thus far provided Milosevic not with the opportunity to confess or grovel but a platform from which to argue for his own interpretation of history.

The Serbs and the Hutus, of course, were on the losing side of their conflicts. Which leads to a problem identified by Madeline Morris, a law professor at Duke University, who asserts in an article published in Law and Contemporary Problems (2001) that only after defeat has it been possible to bring anybody to trial, a fact which will not change under the new ICC. “It is unlikely that a government sponsoring genocide, war crimes, or crimes against humanity,” she writes, “would consent to the prosecution of its national for his or her participation. Therein lies the problem with an international criminal court that may exercise jurisdiction only if the defendant’s state of nationality consents.”
Another problem with the trials is that they occur before enough time has elapsed for historians to determine what actually happened. Thus the courts have the effect of pre-empting history. This disturbs David Paciocco. “The trial of a man whose liberty is at stake,” he emphasizes, “should never be seen as an inquiry into history.”

Yet another thorny issue, certainly for the ad hoc tribunals, is that the world has two predominant judicial systems: Anglo-American common law and the European inquisitorial civil system. These have produced distinct legal cultures, each with its own deep history, traditions, and assumptions. The critical difference between them has been described by Michael Johnson, an American who is the chief of prosecution at the icty. “The process of convincing a jury,” he said, “[is] fundamentally different from the process of building a judgement.”

When a lawyer trained in and devoted to one system happens to stand before a judge imbued in the assumptions of the other, it’s like two pieces of sandpaper that cannot help but rub together. While both systems are ideally devoted to establishing the truth, the European inquisitorial civil system gives that task explicitly to the judge, so much so that he or she can take charge of a trial almost to the point of taking over the prosecutor’s role. The Anglo-American common law system, by contrast, plays out through an adversarial battle between the defence and the prosecution, usually in front of a jury, where the judge acts as a neutral referee.

The formula for selecting judges for the new court has put just about every variable of gender, region, ethnicity, culture, and legal background into play. Through it all, Kirsch is confident that the new ICC will try to build a hybrid that will not look back but will look forward. “I think this kind of system is the way to the future,” he says. “It is not possible to have an international system that is borrowed from one legal tradition. My sense is that, at some point, we will not talk about what we took from common law and what we took from civil law, but [will have] a sui generis system that has tried to incorporate principles that are suitable for this kind of court. And then just try to make the best of it over time.”

Sitting in his cluttered office at Tufts University in Medford, Massachusetts, Alfred Rubin declares the issue of the legal systems “a red herring”—though, he acknowledges, not for the lawyers who have to deal with them. But in the big picture, while others might have suggestions concerning how the new court might be tinkered with to make it better, this noted legal writer and teacher, who has become professor emeritus of international law at the Fletcher School of Law and Diplomacy, is an outright opponent. “The problem with the International Criminal Court,” he says, “is that it can’t possibly do what anybody would regard as justice. This is the justice of those who have the power to impose their will but are not willing to have anyone impose their will on them.”

In one of his many articles on the problematic nature of the international court, he wrote that it was important to anticipate absurd situations, i.e. how the prosecution of a head of state who is later found innocent by a tribunal can alter the politics of that sovereign state. “The presumption seems to be,” he went on, “that war or genocide is part of a game that can be overseen by an umpire with helpers; that ‘rules’ can be imposed or even voluntarily ‘accepted.’ In my opinion, this model of international society is seriously inaccurate. The attempt to create an international criminal court assumes that in all important ways the international legal order is similar to the municipal legal orders with which we are familiar. But with regard to criminal law, that assumption is simply not true. There is no universal ‘law maker,’ ‘enforcer,’ or ‘adjudicator’ in the international legal order.…[And] it has been shown that the current purported codifications are actually too general or too vague to meet the usual requirements of a criminal justice system administered by fallible and disagreeing human beings.”

So what, I ask, would he do instead? Pretty much what’s been done in the past, Rubin answers. “Foster internal truth and reconciliation commissions. What I call ‘Waldheimize’ an evil person as we did with Kurt Waldheim [the former Austrian President and UN Secretary-General belatedly discovered to have had a Nazi past]. Don’t give him a visa. In the case of Milosevic, he might or might not be guilty of what he’s accused of, but there’s no doubt Serbs are responsible for a good number of killings. So we can say, ‘We don’t want to do business with you,’ as we did with South Africa until it changed its government. That’s the way to deal with wicked governments. The point is to separate the criminal individuals from the democratic process. If the people of a country are willing to put these beasts into a position of authority, it’s not for us to try the beasts but to say, ‘Those who put them in authority should get the full results of that.’”

Ninety-two states have ratified the new ICC. But some important ones, driven either by skepticism or self-interest, have not. As Ken Gallant, a professor of law at the University of Arkansas and a leading member of the newly created International Criminal Bar (designed to represent the interests of defence lawyers) points out, many of the world’s most populous countries—China, Russia, Indonesia, India, and the United States—are not part of it. The absence of the U.S. is the most painful and, because of the American self-appointed global leadership role, the most problematic. The court’s credibility and ability to function could be deeply impaired by its absence.

The ICC is a project that comes very much out of the liberal internationalism that held sway after the end of World War II, the world after Hitler. Lawyers and human-rights activists both envisioned and desired a transnational legal and economic order in which all powers would become disinclined to act alone and would be integrated through a series of binding global institutions. But the desire not to make their leaders—or their soldiers—vulnerable to anybody else’s justice (including global justice) has kept small countries, like Israel, and big ones, like the United States—certainly under its present administration—outside the court. So while organizations like the American Bar Association endorse the idea of the court, the entire international system, which includes everything from the Kyoto Accord, to the gatt, to the ICC, appears to be in conflict with the current American administration’s view of itself. Gulliver, as Michael Ignatieff has written, does not want to be tied down “with a thousand legal strings.”

Kirsch tries to put on a brave face: “If the court starts to do its job and does it well,” he says, “it is my hope that, some day, states that are reluctant now will understand that this is a court that will help them and not harm them. They have nothing to worry about with the court; they could use it for their own purposes.”

But using it to their own purposes is precisely what Rubin worries they will do. “The court will be used for political purposes; people will try their political enemies. Whether or not they’re convicted, we’ll have to see. But I can say for certain that nobody in a position of authority in Europe or North America will ever come before this court. It’s all high politics and the normal hypocrisies that go with high politics.”

For Paciocco there is one additional concern, which might be termed “blowback.” What the ICC does on the world stage, he fears, could very well come back to haunt us at home. “A body of jurisprudence emanating from these international trials is likely to be attractive and influence our thinking,” he says. “Coming from a court that we’re a party to, it will change our culture, not just our legal culture.”

His example is our deeply ingrained custom of prosecuting and punishing on the basis of intent. “If you harm somebody but you don’t intend to do it, it might not be criminal. Other systems have a different approach; if somebody’s harmed, that’s enough. So, there are whole different attitudes about when you hold people responsible and how you hold them responsible.”

Another problem area is the role of the victim in a criminal trial. Paciocco is apprehensive that this will be affected, and not necessarily for the better. “Victims have access to counsel and participation rights in some of those criminal trials. They don’t have that in Canada, but they would love to see it. There is no way this court won’t ultimately have an impact on our domestic jurisprudence, on our system, which has taken literally hundreds of years to develop and reflects our experiences, our values, our history. It frightens me that somebody will come in and say ‘I know better because look at what they’re doing over there.’ A proceduralist like me finds myself opposed to motherhood issues not because I’m opposed to the issue but because I’m opposed to the process. In our system, process is essential to justice.”

Some of the ICC critics flash warning lights, others hold up full stop signs. But in this debate, it might be sporting to give the last word to the affirmative. Kirsch reflects that he has a different role now that he is a judge and no longer a diplomat, yet he still manages to speak in the phraseology of the diplomat. To the critics he says, “I hope those who have hesitations—on grounds that are more ideological than real—will really look at the court for what it is and what it really could do.”

For Kirsch, the ICC represents a single unique opportunity. “The court,” he says, “must demonstrate through its actions that the judicial nature of the institution and all the safeguards are indeed applied in practice. That, and efficiency, are the two key things the court can do to help itself.

Larry Krotz
Larry Krotz has written extensively for magazines and newspapers, including The United Church Observer.