DRAFT-Please do not cite or quote without permission from author - 1 1Why International Civil Servants Matter: How the First Prosecutor Engaged ...

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           Why International Civil Servants Matter: How the First Prosecutor Engaged the

                                  UN Security Council †

                                    C. Cora True-Frost

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       Why was the first Prosecutor of the International Criminal Court (ICC)—an office

and institution without enforcement power against its suspects, its indictees, or other

IOs—able to gain ground against an initially hostile and powerful UN Security Council?

Despite tremendous power asymmetries in this relationship, which I detail, the Prosecutor

was in fact able to create a more positive relationship with the Council over the course of

his tenure. 2 How? My account of the Prosecutor’s role in shaping this relationship has

theoretical implications for new interdisciplinary work in the field of international

relations and international law on IOs, specifically: strengthening our understanding of

the significant role of international civil servants within IOs and how such officeholders

within IOs are often on the ‘front lines’ of diffusing legal norms.

       What happened when the Council, which initially adopted an antagonistic stance

towards the ICC, was compelled to share its authority over mass atrocities with the

Court? The UN Security Council (“Council”) has borne the primary responsibility of

maintaining international peace and security since 1947. 3 But in 2002, for the first time,

the Council’s primary responsibility overlapped with another international organization’s

responsibility to prosecute violators of international criminal law. It was in 2002 that the

Rome Statute established the International Criminal Court (“Court” or “ICC”) with the

mandate to “exercise . . . jurisdiction over persons for the most serious crimes of

international concern, in a manner complementary to national criminal jurisdictions.” The

Prosecutor’s mandate is to prosecute those most responsible for grave crimes.

       When Luis Moreno-Ocampo, the first Prosecutor of the ICC (“Prosecutor”),

began his job in June 2003, 4 he faced the formidable task of managing an unprecedented

relationship with the powerful UN Security Council. 5 Simply ignoring the Council was

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not an option for the Prosecutor. Under the terms of the Rome Statute, the Council has

the authority both to stop a planned or pending ICC prosecution for a year and to refer

situations to the ICC, including situations involving states not party to the Rome Statute. 6

In addition, the Council can ask the Pre-Trial Chamber of the ICC to review the

Prosecutor’s choices pursuant to its referrals. 7 Yet, the Council is, practically speaking,

not legally accountable. 8 While the five veto-wielding permanent members of the

Council have the unparalleled Chapter VII power to bind states to enforce their decisions,

they cannot be removed from their positions under the terms of the UN Charter.

       By contrast, the Prosecutor lacks any material power over the Council or ability to

hold it accountable. Rather, a number of mechanisms hold the Prosecutor accountable to

the Council and the ICC. 9 The Assembly of State Parties organ of the ICC has the power

to remove the Prosecutor. 10 He is further held accountable under international criminal

law as all prosecutions must be proven beyond a reasonable doubt. In addition, the ICC

Pre-Trial Chamber possesses the authority to review the Prosecutor’s independent power

to initiate prosecutions or to refrain from prosecuting.

       Given these organizational and power asymmetries, the first Prosecutor had to

choose how we would engage the Council. He might have considered himself the

Council’s agent, compelled to make indictments, if he were to ever receive a referral

from the Council. He might have avoided examining situations that would be sensitive to

the permanent members out of concern that the Council would defer his investigations.

Alternately, pursuing a more risky strategy, he could have treated the Council with

hostility, using the powers of his Office to make speeches that challenged and shamed the

Council or forced a confrontation with the Council at the outset on the issue of his

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discretion and authority. For example, he could have decided not to open investigations

in situations referred by the Council to avoid the criticism that the Court is a tool of the

powerful members of the Security Council.

       I argue that he instead pursued a third option, guarding his independence, while at

the same time remaining alert to the Council’s power to alter the course of his

prosecutions and thus treating the Council as an institutional ally. In engaging the

Council, the Prosecutor fit the classic model of an international civil servant described by

former UN Secretary-General Dag Hammarskjøld in 1961. 11 In Hammarskjøld’s

account, the international civil servant is prohibited from seeking or receiving orders

from any one government, and is compelled to be and to remain politically neutral. 12 In

this vein, Luis Moreno-Ocampo repeatedly emphasized, “[M]y Office evaluate[s] the

crimes committed, their gravity and national proceedings. I have to apply the law.

Nothing more, nothing less. The decision that ending impunity will ensure lasting peace

and security was taken in Rome. I should not, and I will not take in[to] consideration,

political considerations.” 13 The first Prosecutor thus proclaimed that he would not be

swayed by politics.

       Even as he chose to treat the Council as an ally, he made choices that protected

his Office’s impartiality and independence. Hammarskjold’s international civil servant

has significant administrative authority and discretion. He does not remain neutral with

respect to discharging the mandate of his Office. Even when his duties conflict with the

interests of some member states or when his decisions will be unpopular, he must

proceed to discharge his mandate. Likewise, the first Prosecutor had administrative

authority over the Office of the Prosecutor. 14 He used this authority to fill gaps in the

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Rome Statute, including, for example, through two controversial policies: one interpreted

the Rome Statute as requiring him to disregard political concerns as a factor in

discontinuing investigations or prosecutions. 15 Another asserted that his Office had the

right to decide whether to investigate situations referred to it by the Council. 16

       The Prosecutor’s capacity to affect the Security Council’s relationship to the ICC

in this way was limited, but as he learned by styling himself as an international civil

servant, it was not non-existent. The Prosecutor used soft power to interpret and shape his

Office. He recognized that the Council’s respect for the Court would be a vital

component of the Court’s success and he thus chose to engage the Council constructively.

He refrained from reacting to obstacles created by the Council that at times impeded the

pursuit of his mandate. Through institutional transparency he sought to garner broad

support for his Office’s work. 17 By mostly refraining from requesting specific assistance

from the Council, he neither shamed it nor provoked a confrontation with it. 18 Before he

used the material power at his disposal to issue indictments, he warned the Council. 19

       By treating the Council as an institutional ally in these ways, he encouraged,

rather than discouraged, increased interaction and dialogue between the Court and the

Council. During his tenure from June 16, 2003 to June 15, 2012, the Council reaffirmed

the ICC’s role in prosecuting violations of international criminal law in twenty-six of its

resolutions, eventually ceased its attempts to defer potential ICC prosecutions, referred

two situations to the Court, and refused to defer ongoing prosecutions when asked to do

so by the African Union. 20

       Despite the increased positive engagement between the Prosecutor and the

Council, to the disappointment of the Court and many Rome Statute members, the

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Council still has not offered critical enforcement support for ICC investigations and

arrests. In fact, when it referred situations to the ICC, the Council forbade the General

Assembly to use funds to assist in the ICC’s operations. 21 This has led some to consider

the Council’s referrals to the Court to be a “poisoned chalice,” 22 not a true sign of support

for the Court but instead an attempt to pass to the Court insoluble, entrenched political

crises and rid the Council of these situations. In this case study, it may be that some

Council members may have had mixed, or even insincere intentions 23 in making the

referrals to the Court, and I argue that in the near-term, the referrals present opportunities

for engagement between the Council and the Prosecutor. I do not analyze criticisms of

the Prosecutor’s handling of specific cases in this Chapter; 24 I focus instead on the

Prosecutor’s framing of his otherwise difficult relationship with the Council. Within the

legal and political constraints the first Prosecutor faced, there was initially little hope or

receiving support from the Council, and so even absent enforcement power, this

increased favorable engagement represented significant progress.

        Of course, the first Prosecutor’s actions were not solely responsible for the

positive changes in the Council-Court relationship. Other factors have also played

important roles, including: the number of Rome Statute member states on the Security

Council at any given time; the Obama Administration’s more receptive position to the

ICC; 25 and exogenous shocks like the Council’s need to address certain situations arising

from the Arab Spring. Had the Prosecutor been more aggressive in confronting the

Council, however, the relationship between the Court and the Council may well have

been stunted in its infancy, precluding any future referrals by the Council to the Court.

On the other hand, had the Prosecutor adopted a more passive posture regarding Council

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referrals the unavoidable overlap between his mandate and the Council’s might have

compromised his independence more deeply than necessary.

       This Chapter proceeds as follows. The initial section outlines the legal and

political powers of the Prosecutor and the UN Security Council, as well as the respective

structures of each institution. The section that follows argues that the first Prosecutor

followed in the footsteps of Hammarskjold’s international civil servant in seeking to

engage the UN Security Council constructively. This section suggests ways the

Prosecutor gradually elicited the Council’s willingness to support—if not enforce—the

ICC’s role in international criminal law. The next section details the arc of the

relationship between the Prosecutor and the Security Council, setting forth evidence of

the increasingly positive interaction and dialogue between the two. The final section of

this Chapter sets out the theoretical and practical implications of this account of the first

Prosecutor’s engagement with the Council.

The UN Security Council and the Office of the Prosecutor: Powers and Constraints

       The formal parameters of the relationship between the UN Security Council and

the independent Prosecutor of the ICC are set by the Rome Statute, the UN Charter, and

the Relationship Agreement between the UN and the ICC. 26 These documents shape, but

are not the sole determinants of the powers of and constraints on the Council and

Prosecutor. When the first Prosecutor sought to encourage Security Council members to

engage the ICC favorably, he had to work within these constraints.

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The Council

        As the sole organ with the capacity for collective judgment and mobilization of

force in interpreting the UN Charter, the Council has broad discretion to determine what

qualifies as “a threat to international peace and security” under Article 39. 27 The

Council’s structure privileges five military powers by vesting in them permanent Council

membership and veto power, but Council action requires a consensus of at least nine of

the fifteen members. 28 Notwithstanding the collective responsibilities and powers granted

to the Council under the UN Charter, as a practical matter, the five permanent and ten

elected members of the UN Security Council undeniably represent their states’ interests

in the organ’s pursuit of the collective goal of maintaining international peace and

security. Indeed, the political interests of individual member states often prevent the

Council from acting in the face of grave violations of international law, 29 prompting legal

scholars and diplomats to advance legal arguments for Council reform or for alternatives

to Council action. 30

        While the Council must not violate jus cogens norms or the terms of the UN

Charter under international law, 31 as a practical matter the Council is primarily

accountable to non-member states only through its reputation. The Council is not held

legally accountable since there is arguably no existing international or national institution

with the power to enforce a binding legal judgment regarding its actions and omissions. 32

        Although the Council played a historic role in developing international criminal

law, 33 its attention to violations of international criminal law has been uneven and

unreliable. At present, three of the five veto-wielding permanent members—the United

States, China, and Russia—are not Rome Statute members. In addition, the Rome Statute

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ratification status of the ten elected members on the Council varies from time to time, and

this has an impact on the Council’s interactions with the ICC.

The ICC and the Prosecutor

        After extensive negotiations, in July 1998, 120 states—with the support of a broad

swathe of civil society organizations—adopted the Rome Statute, creating the ICC as a

permanent Court to focus sustained attention on atrocities and “to put an end to impunity

for the perpetrators of these crimes and thus to contribute to the prevention of such

crimes.” 34 The autonomous ICC came into being on July 1, 2002. 35 It is formally

independent of the UN and is composed of four organs, including the Prosecutor’s

Office. The ICC relies on voluntary contributions and cooperation from States to support

its investigations and enforce its indictments under international law. The Assembly of

State Parties elects the Prosecutor and judges and determines the budget for the Office of

the Prosecutor. 36

        The Office of the Prosecutor has the power to trigger the jurisdiction of the Court,

to investigate crimes and to prosecute. 37 In exercising that power, the Prosecutor must

apply the law as set forth in the Rome Statute. The Prosecutor should not represent the

interests of any one state, but should instead represent the collective interests of the State

Parties to the Rome Statute in prosecuting those accused of atrocities. 38 The bases for the

Prosecutor’s jurisdiction, as well as conditions for admissibility are set forth in the Rome

Statute. 39 The Pre-Trial Chamber must confirm the Prosecutor’s charges, 40 and it has the

corresponding legal authority to review the Prosecutor’s investigations as well as some

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failures to proceed with investigations. 41 The Council or a referring state may also ask the

Pre-Trial Chamber to review the Prosecutor’s omissions. 42

       The investigatory and enforcement capacities of the Office of the Prosecutor are

limited by significant logistical constraints and resource gaps. Despite states’ obligations

under international law not to interfere with and to execute ICC arrest warrants, in

practice, member state compliance has been inconsistent. Unlike a domestic prosecutor,

therefore, the Prosecutor of the ICC must necessarily be concerned about how and

whether his investigations and indictments will be enforced. 43

The Legal and Political Relationship between the Security Council and the Prosecutor

       Since politics influence—and sometimes are the chief determinant of—the

Council’s responses to different threats to peace and security, coordinating the various

positions of both elected and permanent Council member states on referrals to, deferrals

from, or support for the ICC is difficult. The antagonism of the “P3,” the United States,

China and Russia, 44 to the Court disturbs the possibility of consistent support for the

Court from the Council. Although the Council referred the situations in Libya 45 and

Sudan to the ICC, its subsequent support has been famously weak, including, for

example, the Council’s stipulations that UN funding should not be used to support the

ICC’s work related to either of these referrals. 46 When the Council has referred situations

to the ICC, the Council has not consistently called on states to ensure that ICC arrest

warrants are enforced. 47 Nor has it condemned State Parties to the Rome Statute or UN

member states for inviting or receiving fugitives, as happened when President al-Bashir

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visited Rome Statute members Malawi, Chad, Djibouti, Kenya, and Nigeria, all parties to

the Statute. 48 Indeed, even permanent Council member China has received ICC-indictee

Bashir on state visits. 49

        As the one who must try defendants before the Court, it is challenging for the

Prosecutor to manage a relationship with the Council. 50 Although the administrative and

budgetary operations of the Office of the Prosecutor are not subject to the oversight of the

Security Council, under the Rome Statute, the Security Council can compel the

Prosecutor to defer investigations or active prosecutions for up to a year. 51 Council

members are concerned with issues such as the pace of ICC cases and judicial decisions,

but they watch the Prosecutor’s actions most closely; the Prosecutor has been and

remains a focal point for Council members’ perceptions of the Court. 52 Moreover, the

Council can request review of Prosecutorial action, and acting under Article 13 of the

Rome Statute and Chapter VII of the UN Charter, the Council can also refer situations to

the ICC, including those involving non-state Parties. 53

        Other more informal aspects of the relationship between the Court and the

Council have evolved over time, thanks in part to Moreno- Ocampo’s administrative

structuring of the Office. For example, members of the Joint Complementarity and

Cooperation Division of the Prosecutor in the New York office of the ICC now regularly

interact with Council members. In addition, other members of the Court, such as the

President of the ICC, meet with Council members from time to time. 54

The Prosecutor as an International Civil Servant

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       As I stated above, in 1961, UN Secretary-General Hammarskjøld famously

described the international civil servant as one who is prohibited from seeking or

receiving orders from any government, compelled to be and to remain politically

unbiased, and nonetheless likely to run counter to some member states’ interests in the

pursuit of the execution of his mandate under international law. 55 Under

Hammarskjøld’s account, the international civil servant, no matter how prominent, must

not give in to specific political pressure in the pursuit of his mandate, and must be willing

to end up in conflict with major powers. 56

       Hammarskjøld’s account of the international civil servant focused on the UN

Secretary-General. Yet, in spite of the differences in their mandates, in many ways the

Prosecutor of the ICC is similar to the UN Secretary-General. 57 As the chief

administrative officer of the UN, although the Secretary-General follows the general will

of the General Assembly and the UN Security Council, he has independent discretion in

bringing matters to the attention of the Council. 58 When he assumes responsibilities

delegated to him from the Council and General Assembly under Article 98, he is

expected to discharge these responsibilities using his independent discretion. 59 In a

similar fashion, the Prosecutor has “full administrative authority over the management

and administration of the Office of the Prosecutor.” 60 The Assembly of State Parties has

delegated to him the duty to prosecute, and he is expected to use his independent

discretion to discharge this duty.

       Unlike the UN Secretary-General, the Prosecutor is not directly subordinate to the

UN Security Council or any organ of the Court. The Prosecutor has been and remains a

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focal point for Council members’ perceptions of the Court as they see the Prosecutor’s

actions as reflecting on the Court. 61

        Hammarskjøld argued that the international civil servant must use integrity and

conscience to self-police against bias and subjects about which he cannot be neutral. He

likened the international civil servant’s tools in his quest for neutrality to those of a judge.

The Prosecutor’s job may seem to confound the very notion of neutrality. He must

impartially consider how judges will weigh his evidence, but when he prosecutes, he is an

advocate. The sort of neutrality I am talking about is political neutrality, not juridical

neutrality. As a faithful servant of the Rome Statute member states, the Prosecutor should

remain politically neutral. But as an officer of the law charged with the task of bringing

accused criminals to justice, it is his task to undertake the prosecutions with which he is

tasked with diligence and purpose. In other words, he does have a stake in the outcome of

his otherwise politically impartial decisions of whom to prosecute under law. 62 If the

international civil servant self-polices, Hammarskjøld claims he can render unbiased

decisions, which he defines as decisions not influenced by the individual’s personal—as

opposed to institutional—loyalties. 63

        For skeptics, it may be difficult to reconcile the fact that both the UN Secretary-

General and Prosecutor are elected by member states and still maintain politically neutral

positions.64 Hammarskjøld emphasizes the need for politically unbiased, neutral

international civil servants, and in the process puts great faith in the power of the law and

judgment to resolve difficult issues. Adopting a similar position, Luis Moreno-Ocampo

repeatedly emphasized that his mandate was to follow the rule of law and the rules set

forth by the Rome Statute. 65 This faith in the capacity to be unbiased is not born of blind

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optimism. Neither Hammarskjøld nor Moreno-Ocampo would argue that politics are

rendered moot by the existence of international law. They would instead claim that in

specific situations, law and judgment can displace political bias. 66

        Without the support of member states, the UN Secretary-General and the

Prosecutor have limited capacity for implementation, and are thus compelled to interpret

their mandates in ways that build credibility among their cohorts. The UN Secretary-

General’s initiatives have the possibility of being supported by a Security Council

Chapter VII mandate, under which states are obliged to comply and may be subject to

sanctions if they fail to do so. Implementation concerns are arguably more pressing for

the Prosecutor, since he must rely, absent support from the Security Council, exclusively

on contributions and cooperation from state governments and international organizations.

His ability to investigate active conflicts, to maintain the security of witnesses and

defendants, and to enforce arrest warrants without the power to compel action are all can

be jeopardized by lack of state cooperation. The support the Prosecutor requires is rarely

easily won and is still far from predictable. 67

        Hammarskjøld claims that the international civil servant is particularly useful

when an organization needs “impartial implementation or execution of a decision that has

been reached,” 68 but where the means for implementation have not been agreed upon. In

such cases, the international civil servant may be given a wide amount of latitude from

states to make unpopular decisions. 69 In a similar fashion, the Assembly of State Parties

delegates to the Prosecutor the authority to impartially prosecute violations of

international criminal law. Through the situations it refers to the Prosecutor, the Council

also delegates to the Prosecutor the authority to make potentially unpopular decisions on

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who should be prosecuted under international law. Much as the Secretary-General of the

UN or the Director-General of the World Trade Organization has the authority to

schedule rounds, to generate reports, to foster state-to-state discussion, and to offer a

venue for engaging various issues, 70 in addition to wielding his prosecutorial powers, the

Prosecutor represents and runs the Office of the Prosecutor. He, too, can schedule

meetings, generate reports, and foster state-to-state discussion.

       The Prosecutor used his administrative and other soft powers to supplement the

legal standards of the Rome Statute through published policy papers that filled gaps and

clarified how he would be implementing the Statute. 71 In these policy papers, Moreno-

Ocampo refined and defined the gravity and magnitude of crimes that the Office would

consider. In an early policy paper, the Prosecutor addressed the potentially political

nature of the overlap between justice and peace, and controversially defined his mandate

as requiring him to pursue apolitical justice, not political peace. 72 By pursuing both the

consistent application of the law and transparency in his decision-making, the Prosecutor

deepened the accountability of his Office—including its accountability for political

bias, 73 and developed the global profile of the ICC.

       While it is critical for the international civil servant to interpret his mandate

impartially and according to an international legal framework, the international civil

servant is not neutral about accomplishing the mandate of his office. To the contrary, the

international civil servant must be willing to take unpopular positions in order to execute

his mandate under law. 74 The first Prosecutor’s decisions to indict Lord’s Resistance

Army leader, Kony, and the Sudanese President, al-Bashir, for example, provoked

political controversy but it is hard to imagine how he might have executed his mandate to

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prosecute violators of international criminal law without provoking controversy. The

Prosecutor has frequently been attacked for his alleged bias. 75 For example, the

Prosecutor was accused of bias for indicting only Bemba in the conflict in the DRC. 76

The Prosecutor also investigated for some time whether the Court might have jurisdiction

over the acts alleged to have occurred in Iraq and Palestine, and eventually issued a

reasoned decision explaining why there was not sufficient basis for the Court to prosecute

in those situations. He opened a preliminary examination into Afghanistan in 2007, and

as of November 2013, neither he nor his successor has yet made a subject matter

jurisdiction determination. 77 Under Hammarskjøld’s model, each of the controversies

and allegations that followed the first Prosecutor’s publication of a policy paper or

decision to open a preliminary examination, investigate, or prosecute, might just as well

be viewed as a sign that the Prosecutor was pursuing his mandate with integrity and not

according to orders from specific governments. 78

       Indeed, the Prosecutor endeavored to maintain his legal independence, and to

convey to states that he was not influenced by political pressure from any source—

including the UN Security Council—and he used his discretion to intentionally limit the

degree to which he had to answer to the Council. For example, the first Prosecutor

indicated that the Council’s referral of a situation to his Office does not necessitate his

investigation of a situation. 79 Instead, he decided that he was obliged to conduct an

independent review of Council-referred situations to ascertain whether he should decide

to trigger the jurisdiction of the court and open an investigation. 80 He also issued a

policy paper stating that his decision to prosecute would not include consideration of

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political concerns. This controversial policy was designed to reinforce the Prosecutor’s

independent discretion. 81

        The Prosecutor was aggressive in many respects, but he was not reckless in

pursuing the mandate of the Court. As an international civil servant, however, the

Prosecutor was at the same time necessarily concerned with the institutional longevity of

the ICC. Given the overlap between the mandates of his Office and the Council, he

sought to use the powers at his disposal to treat the Council as an ally, even as he

maintained his political neutrality. With only a few exceptions, during his briefings he

refrained from asking the Council for its direct support. He also warned the Council

about the various arrest warrants he would issue in the case of the Sudan. In addition,

although the Prosecutor might well have chosen not to prosecute in the Council-referred

situation in Libya in light of the ongoing conflict and insecure situation on the ground,

the constrained resources of the Court, and the Council’s failure to help enforce its

previous referral of the Sudan to the Court, the Prosecutor still applied the law and moved

forward.

        Of course, too much coordination between the UN Security Council and ICC has

the potential to undermine the Prosecutor’s actions. For example, some states object to

the Rome Statute permitting the UN Security Council to refer to the ICC situations of

non-State Parties to the Statute. 82 Unfortunately, there was little the Prosecutor could do

to address these objections, aside from what he did do in casting his role as an

international civil servant. He also sets forward reasoned explanations for the disposition

of his cases. 83

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       Members of the Council have watched the actions of the Prosecutor closely in

deciding how to engage with the ICC. By developing and publishing transparent policies

about how he would interpret his jurisdictional mandate, 84 the Prosecutor facilitated an

understanding with members of the Security Council that he would act as an impartial

civil servant. His policies helped allay, even as they did not eliminate, Council member

concerns that his choices to prosecute would be politically motivated. 85 His cautious

commencement of prosecutions built credibility with the Court. During his briefings to

the Council, the Prosecutor retained his independence by mostly refraining from

requesting for the Council to take specific actions in support of his efforts. 86

       Skeptical readers might ask: given the structure of the Rome Statute, could the

Prosecutor act as anything other than an international civil servant? They might argue

that the Prosecutor is an international civil servant by necessity. Yet the first Prosecutor

had tremendous discretion in exercising his role. With that discretion, he might have

chosen to be the Council’s agent, for one thing, or he might have chosen a much riskier

strategy. Had he been more concerned about establishing the ICC’s independence than

with establishing a long-term institutional relationship with the Council, he might have

pursued a more confrontational relationship with the Council. He might have highlighted

the inconsistencies in Council action, or attempted to shame Council members. He could

have exercised his discretion in a far more opaque manner—there was no rule requiring

him to generate or to publish the Office of the Prosecutor’s policy papers.

       Yet, these were not the routes he chose to pursue. Rather, as Professor Jens von

Meierhenrich explains, the Prosecutor developed the infrastructure of the Office of the

Prosecutor and focused on building a strong foundation. 87 He was cautious in

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prosecuting, awaiting state self-referrals and not initiating his own proprio motu

prosecutions. He pursued opportunities to persuade the Council that the ICC is the

appropriate authority to apply international criminal law.

       Another objection might stem from the first Prosecutor’s controversial actions in

seeking to shore up support for enforcement of arrest warrants by engaging State Parties

like Uganda. 88 But the Prosecutor’s attempt to inculcate compliance by States Parties

through meetings and visits fits the model I am describing here: during those visits, he is

acting as an international civil servant using the soft power of his Office to discharge his

mandate, even if his actions in this regard might create controversy..

       Acting as an impartial international civil servant, the Prosecutor was able to treat

the Council as an institutional ally. His actions developing his Office infrastructure,

exercising restraint in his earliest prosecutions, enhancing transparency and

demonstrating his independence through his published policies, proceeding according to

these policies, and being willing to continue to engage the Council, even when it failed to

provide necessary support, all helped him engage favorably with the Council.

The Council’s Increasing (but Still Uneven) Engagement with the ICC Over the First

Prosecutor’s Term

       Over time, at least in part as a result of the Prosecutor’s actions as an international

civil servant, the Council has grown less obstructive of the ICC, and in some cases, even

more supportive of its work. Here I set forth the evidence that there has been increased

engagement between the Council and the ICC by detailing the Prosecutor and the

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Council’s relevant actions. This case study cannot prove causation; it instead relies on

correlation to support the claim that the Prosecutor’s choices have played a role in the

Council’s increasing engagement with and limited instances of support of the Court. It is

important to recall that although the relationship has become more engaged this case

study is not an analysis of the effectiveness of the Council’s actions or omissions in

support of the Court. It also does not compare the first Prosecutor’s progress in engaging

the Council during his term with that of the second Prosecutor’s evolving term, but future

study is recommended. Although the Prosecutor’s increased interaction with the Council

still has not translated into enforcement from the Council, the increased engagement with

the Council has arguably helped strengthen the Court without compromising its

independence.

Actions: The Council’s Increasing Engagement With and Support for the ICC

       Over the course of the first Prosecutor’s term, the relative share of Security

Council resolutions mentioning the ICC grew. During the first five years of the ICC’s

operation, from 2002 to 2006, only two percent of the Council’s resolutions even

mentioned the ICC. For the next five years, from 2007 to 2011, that percentage more than

doubled, reaching five percent. In the year 2012 alone, seventeen percent of the Council’s

resolutions mentioned the ICC. 89 Further, over the term of the first Prosecutor, sixteen

out of the twenty-four UN Security Council resolutions mentioning the ICC were binding

Chapter VII resolutions. 90

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       Over the first eleven years of ICC operations, the Council’s resolutions became

gradually more supportive of the ICC. 91 The Council’s later support for the ICC is

especially notable when compared with its earliest, antagonistic resolutions regarding the

ICC that sought to limit the Court’s jurisdiction. During the ICC’s first five years, from

2002-2006, Council resolutions regarding the Court fell into four categories: deferrals of

ICC jurisdiction; non-binding, thematic resolutions; referral of the situation in the Sudan

to the ICC; and provision of logistical support to the ICC. 92

       The very first Council resolution mentioning the ICC sought to limit the Court’s

jurisdiction. It was followed by two similar American-led resolutions purporting to use

the Council’s Article 16 authority to restrict ICC jurisdiction from reaching

peacekeepers. 93 Support for these resolutions, however, eroded after the United States

lost credibility following its detentions in Guantanamo Bay and the publication of

photographs showing U.S. soldiers torturing prisoners in Abu Ghraib. If the Prosecutor’s

actions had been different, for example, had he more aggressively taken prosecutorial

risks, such as pursuing an independent prosecution as his first case, then the Council may

well secured sufficient support for additional deferrals.

       In 2003, the Council favorably invoked the ICC and international criminal law

norms in its non-binding, broad-based, thematic resolution, Resolution1460 on Children

and Armed Conflict. 94 Then in December 2003, the Prosecutor received his first referral

when Uganda self-referred the Lord’s Resistance Army situation to the Court. 95 On April

16, 2004, after the Prosecutor had threatened to use his proprio motu powers to open a

prosecution, the Democratic Republic of Congo self-referred to the Court. 96 On April 20,

2004, the Council again invoked the ICC and international criminal law norms in its

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Resolution 1539 on Children and Armed Conflict. The Prosecutor announced

investigations in Democratic Republic of Congo on June 23, 2004 and in Uganda on July

29, 2004. The Council had been grappling with the situations in Lord’s Resistance Army-

affected regions and in the Democratic Republic of Congo for some time before these

investigations were opened.

       In 2003, the Council mentioned the ICC in its resolution regarding ad hoc tribunal

judges. 97 Another major development in the engagement between the Council and the

Court occurred after 2004, when the Council was no longer able to reach consensus on

the issue of deferring potential ICC prosecutions, and so its series of deferral resolutions

came to an end. In January 2005, the ICC received its third state referral when Central

African Republic self-referred. 98

       After having closely observed Prosecutor Luis Moreno-Ocampo’s actions for

almost three years, 99 Council members made their first referral to the Prosecutor on

March 31, 2005: the situation in the Sudan. 100 The resolution passed with four

abstentions, one each by Algeria, Brazil, China and the United States. 101 The Bush

Administration abandoned its staunch opposition to the Court in order to facilitate

intervention in the Sudan. Nine of the fifteen Council members at the time were States

Parties to the Rome Statute. As President of the Council, Brazil scheduled an open debate

regarding intervention in Sudan, and NGOs, national leaders, regional organizations and

the African Union and Arab League participated. 102 Notwithstanding these politically

favorable factors, had the Prosecutor used his proprio motu powers aggressively, for

example, in a situation where the gravity and scope of the crimes was not as

demonstrably acute as it had been in the first cases before the Court, Council members

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might well have opted not to refer the situation in the Sudan to the ICC. Ultimately, in

these early days of the Court, the Prosecutor’s restraint earned him some credibility with

Council members and many State Parties.

       In October 2005, the Prosecutor issued indictments against the Lord’s Resistance

Army, 103 sparking controversy regarding whether these indictments unjustifiably

impaired the peace processes. 104 In February 2006, the Prosecutor concluded preliminary

examinations into the situations in Venezuela and the politically-sensitive-for-some-P5-

members-situation in Iraq. 105 In 2006, with the issuance of Resolution 1688, the Council

endorsed the transfer of Charles Taylor, who had previously been indicted in the Special

Court for Sierra Leone, to the ICC, thereby permitting his trial to take place in The Hague

instead of Sierra Leone. 106

       During the second five year-period of the Court’s operation, from 2007-2011, the

Council’s practice regarding the ICC included more calls for cooperation. The Council

did not make any Article 16 requests for deferrals, and implicitly refused to request

deferral of proceedings. Moreover, during this period, the Council took note of the

international criminal law norms in the Rome Statute in four more non-binding thematic

resolutions: three on women, peace and security, and one on children and armed

conflict. 107 In 2007, undeterred by criticisms of the ICC’s focus on Africa, 108 the

Prosecutor announced an investigation into the state-referred situation in the Central

African Republic. Following this announcement, in various resolutions, the Council also

directed states to cooperate with or commended states for cooperating with the ICC in

specific situations before the ICC. 109

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       In March 2009, four years after the Council’s Sudan referral, the Prosecutor

controversially indicted Sudan’s sitting head of state, al-Bashir. 110 In 2009, the

Prosecutor also received a request by non-state Palestine to investigate the situation there.

Although the United States has consistently used its Council veto power to support Israel,

the Prosecutor proceeded to open an examination. 111 The Prosecutor used his proprio

motu powers for the first time to open an investigation in Kenya in March 2010. 112 In

December 2010, the Prosecutor also announced a preliminary examination in the

Republic of Korea.

       In 2011, the Council made its second referral of a situation to the ICC, this time in

a unanimous resolution, Resolution 1970 on Libya. 113 After this referral, in October

2011, the Prosecutor again used his proprio motu powers to open an investigation in Côte

d’Ivoire. On November 29, 2011, the Council also provided logistical support to the ICC

by lifting the 1572 Côte d’Ivoire Sanctions Committee’s travel ban on former President

Laurent Gbagbo to enable his transfer to ICC custody in The Hague. 114

       Aside from the Council’s resolutions, the broader practice of the Prosecutor and

the Council also progressed to incorporate the ICC’s role in promoting international

criminal law. As discussed above, after the Prosecutor received the first Council referral,

he made it clear that he did not read the Rome Statute as obligating him to investigate or

prosecute in situations the Council referred to him. 115 The Prosecutor opened a

preliminary examination on Darfur and evaluated the jurisdictional requisites for three

months before proceeding with prosecutions in June. The Council’s first referral in 2005

precipitated biannual briefings to the Council from the Prosecutor on the situation in the

Sudan, and thus offered more opportunities for constructive engagement between the

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Prosecutor and the Council. Indeed, various forms of interaction now occur between the

two organs through different aspects of the Council’s work program, including, for

example, the Prosecutor’s four briefings per year, as well as the Council’s “soft law”

presidential statements, press releases, and its open debates. For example, by the end of

the first Prosecutor’s tenure, the UN Security Council had adopted eleven non-binding

Presidential Statements (PRSTs) mentioning the ICC. 116 True, these forms of practice are

not binding, but as I describe in this Section, Council members’ actions regarding the

ICC have sometimes been constrained by their past statements and actions.

       As Luis Moreno-Ocampo describes in the Preface to this volume, 117 the Council’s

first ICC-related PRST was adopted on June 16, 2008, and urged the Government of

Sudan to fully cooperate fully with the Prosecutor to end impunity. 118 This PRST is

especially notable as it demonstrated that even non-signatories to the Rome Treaty were

willing to reaffirm the international criminal law norms embodied in the Treaty.

       It was Costa Rica, a Rome Statute member and elected Council member that

succeeded in persuading Council members to adopt the PRST it had drafted. 119

According to Jorge Urbina, Costa Rica’s Permanent Representative to the UN, Costa

Rica chose to negotiate this PRST because of the norms for which it stood. As a small

state lacking a military, Costa Rica was committed to the rule of law that the ICC

represents. 120 “In the previous informal bilateral meeting in preparation of the session,

other ambassadors advised Bruno Stagno Ugarte, the Minister of Foreign Affairs and

Worship of Costa Rica, not to [propose Council action on Sudan]; some even said it was

a naïve enterprise, while others called it a mission impossible. There was no consensus,

no major power in the lead,” Moreno-Ocampo said. 121

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       Costa Rica nevertheless initiated the drafting of a Presidential Statement

demanding the Sudanese government’s compliance with the ICC’s arrest warrants. The

draft PRST was met with significant resistance, particularly from Russia, China, and

Libya. 122 Faced with this resistance, Costa Rica altered the draft PRST to incorporate the

wording of previously adopted Resolution 1593. 123 This satisfied China, which was host

of the 2008 Olympics, and thus chose not to expend the political capital to object to the

statement. With the PRST merely reflecting the content of the already adopted Resolution

1593, Libya was the last member to adopt the draft resolution, most likely because the

alternative was to be the sole dissenter. Thanks to the leadership of the small state and

Rome Statute member, Costa Rica, on June 16, 2008, the Council unanimously adopted

the Presidential Statement. 124

       In addition, just five months after the conclusion of the term of the first

Prosecutor, Guatemala, which was serving as the President of the Security Council in

November 2012, held an unprecedented Security Council open debate dedicated

exclusively to the role of the ICC in international peace and security. The Open Debate

was well attended and generated many statements of support of the ICC’s work. 125

       In these ways, the Court has become increasingly integrated into the Council’s

different forms of practice. Other more informal aspects of the relationship between the

Court and the Council have evolved over time. For example, members of the Jurisdiction,

Complementarity and Cooperation Division of the Office of the Prosecutor now regularly

interact with Council members. In addition, other members of the Court, such as the

President of the ICC, meet with Council members from time to time. 126 Although open

debates and PRSTs do not have immediate legal effect, these forms of Council practice

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can ripen into more binding forms of actions. 127 In addition, the examples of both

Guatemala and Costa Rica show how states that are supportive of the ICC can use soft

law and diplomacy to both to generate continuing support and hold the Council

accountable for its past practice.

Omissions: The Council Refuses to Defer ICC Proceedings, Even As it Refuses to

Enforce ICC Arrest Warrants

       In ways that support the ICC, Council members have refrained from taking action,

even when individual Council members would have preferred to do otherwise. Kenya and

Sudan, as well as the African Union Assembly, 128 have asked the Council to invoke

Article 16 of the Rome Statute to defer the Kenya and Sudan situations currently being

prosecuted by the ICC. But during the first Prosecutor’s term and as recently as January

2014 the Council has repeatedly refused to do so. When the Prosecutor indicted al-

Bashir, not all Council members agreed with his action, 129 but as of January 2014, the

Council still has not intervened to stop the Court from prosecuting al-Bashir. 130 Although

at least China would presumably have preferred to grant the African Union’s request, the

Council decided instead to remain faithful to its earlier resolutions regarding the ICC.

The Bush Administration reversed position on the Court and vowed to veto any attempt

to defer prosecutions in the Sudan. 131 In 2008, the Council adopted Resolution 1828

renewing the mission in the Sudan under Chapter VII, and took “note of the concerns of

the members of the African Union” but did not issue requests to defer proceedings

pursuant to the African Union’s request. 132

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        As stated previously, Council inaction is not always supportive of the Court,

however. As of January 2014, the Council had neither issued calls for the arrest of

fugitive indictees in the situations it referred to the Court nor had it taken any action

against those states that have invited ICC indictees to visit.133 Under the terms of the

Rome Statute, State Parties are bound to apprehend Sudan’s al-Bashir if he travels into

their territory. 134 Yet Rome Statute member states including Chad, Nigeria, Malawi, and

Kenya have disregarded the ICC’s warrants by inviting and permitting al-Bashir to visit

and without arresting him. 135 The Council has nevertheless refused to take action against

these states. 136

        Furthermore, many non-Rome Statute member states have disregarded the Court’s

warrants and received al-Bashir within their borders without arresting him, 137

notwithstanding the fact that his indictment was issued pursuant to a binding Chapter VII

referral of the situation in the Sudan from the Council. 138 Security Council member

China, a Non-State Party to the Rome Statute, welcomed al-Bashir on a visit in the

summer of 2011. 139 In January 2012, al-Bashir also visited Libya, not a member of the

Rome Statute, and was welcomed by the National Transitional Council government. 140

The first Prosecutor, acting as an international civil servant, generally refrained from

beseeching the Council to penalize these states. 141 He chose to primarily rely on the

authority of the ICC Assembly of State Parties to coordinate and fund enforcement, thus

maintaining the independence of his Office, even in the face of his significant

enforcement challenges.

        In 2011 and 2012, after al-Bashir made visits to Chad and Malawi, that the Court

first utilized its article 87(7) procedures to make a report to the Council regarding these

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states’ non-compliance with arrest warrants issued pursuant to Council referrals. 142 The

President of the Assembly of State Parties continues to engage the UN Security Council

on the ICC’s article 87(7) referrals, and tries to secure support and penalties of some kind

for states that fail to adhere to their obligations under the Rome Statute. During the first

Prosecutor’s term and as of January 2014, however, the Council has not yet taken specific

action to discourage visits by indictees. In sum, while Prosecutor Moreno-Ocampo’s

term saw increasing favorable engagement between the Court and the Council, the

Council still did not consistently and affirmatively support the ICC’s implementation of

its mandate.

Implications

       The uniquely powerful UN Security Council is formally beyond the influence of

the relatively powerless ICC Prosecutor, but through the choices he made, the Prosecutor

was nonetheless able to prevent Council interference with his work and to encourage

closer relations with the Council. Viewing the Prosecutor’s successes in the context of the

practical and legal constraints he faced sheds insight on how international civil servants

affect change within international organizations (“IOs”) at the international level. It also

offers lessons for the Prosecutor’s successors.

The Role of International Civil Servants in International Organizations

       This account of the relationship between the Prosecutor and the Council sheds

light on the theoretical question of how norms change at the international level. Previous

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international relations and international law scholarship has not fully accounted for the

role of international civil servants within IOs in guiding policy and interaction with other

IOs. The classic rational actor accounts in international relations, realism and

functionalism, focus on the role of states in directing IO behavior. 143 Institutionalists and

liberals broaden the lens of analysis beyond states to examine how different interest

groups and sometimes individuals can affect state behavior. 144 Constructivist scholars

contend that IOs can influence state interests and create new state preferences, but how

norm diffusion occurs within and between IOs themselves is understudied. 145 Further,

scholars in international law have paid little attention to how the internal operations and

staff of IOs might affect the diffusion of norms. Rationalist accounts in international law

focus on state interests, 146 while norm-based legal scholarship focuses on the questions of

how law influences state behavior. 147 Managerial theory, a norm-based theory, seeks to

explain why states comply or fail to comply with international law. 148 As Beth Simmons

identifies, accounts of norm diffusion often focus on the effects of norms on state-based

elite actors—either state, judicial, or bureaucratic elites. 149 This case study helps fill a gap

in the international law and international relations literature about elite norm

entrepreneurs by focusing instead on the international civil servant.

        Through this case study of the of the relationship between the Office of the

Prosecutor and the UN Security Council during the tenure of the first Prosecutor, we can

see the bounded capacity of international civil servants to wield soft power to influence

states and UN organs. We see how such civil servants can influence, in incremental ways,

the work program and agenda of not only their own IO, but also other IOs. International

civil servants can use diplomacy and engagement to promote norms and to shift “the

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logic of appropriateness” not only within their own IO, but in others, too. The Prosecutor

used Council briefings to persuade and to educate 150 Council members about the

possibilities for the ICC’s consistent application of international criminal law norms.

Although the Council has wide latitude in choosing its actions, Council members have

been constrained by the Council’s past practice and reputational concerns. At the very

least, Council members’ mimicry and social acceptance 151 of the role of the ICC in the

application of international criminal law increased over the term of the first Prosecutor.

The Prosecutor was successful in helping to shift the Council’s initial hostility to the

Court to regularized engagement with it.

       Given the political nature of the Council, it was important for the Prosecutor to

exploit the hierarchy of the Council’s administrative practices. For example, the Council

may be particularly willing to take non-binding action such as thematic resolutions and

presidential statements. The Council has the ability to integrate norms into the mandates

of peacekeeping missions and to request that the Secretary-General integrate particular

norms into administrative reports. Significantly, the Council’s willingness to adopt these

soft law forms of norm diffusion are not determined exclusively by what its individual

members’ interests are, but instead by a complicated interaction between what the

members want and what norms have a legitimacy that cannot be rejected. 152 The

Prosecutor incrementally worked through different levels of engagement. He first

transcended the Council’s hostile resolutions of deferral without directly challenging

them. He then secured favorable invocation of the Court in the Council’s nonbinding

thematic resolutions as well as logistical cooperation. In presidential statements, and

Open Debates, the Council also mentioned the ICC’s work. When he received Council