Can the ICC Ever Get it Right?

Nesrine Malik makes clear with her title, “The ICC’s Blunder on Sudan,” that something has gone amiss with the efforts of Prosecutor Luis Moreno-Ocampo to ensure the ICC statute is applied to those circumstances it was meant to address. But why is something amiss in this situation? The Prosecutor has a mandate and the legal regime for the ICC is relatively clear (at least procedurally); the crimes it covers can always be debated, but there is a degree of clarity present as to what acts are addressed; so what has gone wrong? The difficulty lies in expectations about justice and about the use of international law to pursue justice.

If the Prosecutor publicly stated that he felt it would be counter-productive to take action regarding accusations of genocide in Sudan, his office would be criticized. Whether the Prosecutor does or does not take action, there is criticism. So, can the ICC ever get it right? The quick answer is, probably not.

Someone will always have a reason (and usually a defensible reason) to criticize the ICC and its institutions for acting or not acting.