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The 2018 Annual Celebration | 11th Marburg Lecture on International Criminal Law with Kimberly Prost, Judge at the ICC
The 2018 Annual Celebration of the Research and Documentation Center for War Crimes Trials (ICWC) took place on December 6 in the historic auditorium of the Old University. It was complemented by the 11th Marburg Lecture on International Criminal Law, delivered for the first time by a female speaker, Kimberly Prost, Judge at the International Criminal Court (ICC) in The Hague. Judge Prost used the occasion of the 20th anniversary of the Rome Statute of the ICC to discuss its achievements and ongoing challenges.
The annual celebration began with a welcome address by the Dean of the Faculty of Social Sciences and Philosophy, Prof. Dr. Hubert Zimmermann. Prof. Dr. Bock, Executive Director of the ICWC, then presented the center’s activity report for the period 2017–2018. On this occasion, the ICWC also celebrated its 15th anniversary, providing an opportunity to reflect on the past fifteen years. Characteristic of this period are the guiding principles of interdisciplinarity and internationality, which are reflected in the numerous events and collaborations of the past year. Notable highlights include the ICWC conference on the crime of aggression, participation in this year’s International Criminal Law working group, study trips to The Hague and Cambodia, and student participation in several international moot courts and summer schools. The ICWC Trial-Monitoring Programme also forms part of this record. Again this year, numerous proceedings at the OLG Frankfurt were fully documented, enabling international trial monitors who had completed their university training to receive their certificates during the annual celebration.
Below you will find a brief summary of the lecture given by Judge Kimberly Prost:
Judge Kimberly Prost, one of the 18 judges at the ICC, gained firsthand insight into the drafting of the Rome Statute through her participation in the 1998 Diplomatic Conference that established it. She structured her lecture around three thematic focal points. Taking an observational stance, she began with a brief overview of the historical development of the Rome Statute, then evaluated which aspects had been well addressed and which less so. The latter were identified in the third part of her lecture as current “challenges,” the resolution of which remains a task for the future.
She cited the very existence of the ICC as one of the greatest successes of the Rome Statute. Although it may now seem deeply entrenched in the world, this was by no means a given; it represented an enormous achievement by the negotiators who convened twenty years ago. On the dramatic evening of the vote on the Statute, no one yet knew whether the draft would be adopted. The ICC was not an entirely new concept, but had its origins as early as the beginning of the 20th century. The end of the Second World War and the subsequent war crimes trials in Nuremberg and Tokyo provided a significant opportunity to establish such a supranational institution. However, due to the emerging Cold War and the resulting tension between law and politics, this opportunity was initially missed, as the powers could not agree on a unified definition of the Crime of Aggression.
Renewed extraterritorial prosecutions, such as in the case of the Chilean dictator Pinochet, the call for justice following the wars in the former Yugoslavia and the genocide in Rwanda, and not least the end of the Cold War, had brought about a shift in the political landscape that made the revival of the project to establish an international court both desirable and feasible.
The cross-border consensus that establishing the ICC was a good idea is no longer unanimously held today, which introduced the second part of Judge Prost’s lecture. As the first institutionalized court operating at an international level, the ICC faces a wide range of challenges, some of which Prost highlighted, including child soldiers, sexual violence, and cultural property. Given the sheer number of situations and legal issues, not all cases can be handled promptly and adequately. Before addressing the current major “challenges,” Judge Prost first provided a brief overview of the ICC’s successes.
One important achievement of the ICC, according to Prost, is its relevance—that it is recognized as a legal authority with public visibility in the media and politics, “even at the Pentagon.” However, its greatest success lies in the fact that the establishment of the International Criminal Court created not only the possibility but also the expectation of justice for victims of state-perpetrated violence, thereby firmly embedding the ICC at the nexus of law and global politics.
The challenges, Judge Prost noted, are nonetheless daunting today. To fulfill its claim to internationality, the ICC requires as many participating states as possible. While 123 states have signed and ratified the Rome Statute, this number still implies that, until universal acceptance is achieved, the Court can only exercise uneven jurisdiction.
In addition, the increasingly asked question arises as to why the ICC is relevant at all; for example, Kiribati has never experienced genocide—why would the island nation need an international court that might, in some cases, only restrict it? Judge Prost provided an answer with a statement from the President of Fiji, who said that the ICC is like an army for his country, providing protection. Furthermore, Judge Prost noted that senior politicians often do not show sufficient appreciation for the ICC’s work. Currently, there are 15 outstanding arrest warrants, and in executing them, the ICC, lacking its own policing authority, must rely on the cooperation of individual states.
The situation is further complicated by the role of the UN Security Council. At the time of the Rome Statute negotiations, a compromise was reached whereby the Security Council was denied direct control over the ICC, yet access would be allowed under certain circumstances. In the cases of Sudan in 2005 and Libya in 2011, disagreements within the Security Council prevented the adoption of the relevant resolutions, which significantly limited the ICC’s ability to act and, according to Judge Prost, led to negative press coverage directed at the Court that should actually have been attributed to the Security Council.
However, not only states and the Security Council are responsible for the current problems; the ICC’s still inefficient internal administration and judicial procedures are also subject to criticism. Lengthy trials and the lack of consistency or predictability in internal processes have contributed to a decline in the ICC’s reputation, manifesting in a loss of public trust. The media play a central role in this context as a link between the ICC and the public. If the media, for example, portray the ICC negatively regarding the many situations in Africa, an image problem arises—yet this is based on a misunderstanding of the ICC’s work, as its stated goal is for states themselves to prosecute each other for war crimes and crimes against humanity. While the Security Council has in some cases mandated investigations by the ICC, the majority of situations addressed have originated from the initiative of the states themselves.
At this point, the problematic nature of the ICC’s field of work becomes evident, framed as it is by both law and politics. The Rome Statute did not create an independent court standing above the states; rather, it established a system that encourages states to act as prosecutors themselves. In this respect, the often-posed question during crises—about the ICC’s response—is actually misguided, since the initiative of the International Criminal Court was not the idea behind Rome, but was conceived merely as a last resort.
Judge Prost concluded her lecture with an optimistic outlook. She emphasized that the very existence of the ICC already provides victims of state arbitrariness with the opportunity to seek justice—a tremendous achievement in itself. The ongoing extraterritorial trials against members of the so-called IS in Belgium, Germany, and France further demonstrate the necessity of an international court. Even in cases where no trial has yet been initiated, the ICC can contribute to future justice, for example by collecting evidence in Myanmar.
For these reasons, and especially because the concept of the ICC could probably no longer be replicated today due to changed global political conditions, the ICC—which came into being through the exploitation of the brief window of opportunity in Rome—must not be abandoned. It is the responsibility of the audience to ensure that the ICC is preserved and improved, so that in twenty years it becomes redundant for a different reason: because states themselves will have succeeded in providing justice.