I spoke recently with Judge Sang-Hyun Song, who serves as president of the International Criminal Court (ICC). Elected by all the ICC judges, the president oversees the operations of the court and often represents the institution internationally. Judge Song was in Washington for a series of meetings marking the tenth anniversary of the court, which opened for business in July 2002.
We spoke at some length about the recent verdict in the Lubanga case--and the fact that it took more than three years to achieve. He acknowledged that the length of the proceeding suggests a need for reform:
We at the ICC have repeatedly talked about a need to conduct a lessons learned exercise as soon as one judicial cycle is completed...we believe now is the time to commence this lessons learned exercise.
But Song also cast the prolonged Lubanga trial as an important exercise in institution-building. The case featured repeated clashes between the prosecutor and the panel of judges assigned to it, and Song believes those clashes were critical in enforcing judicial limits over the prosecutor.
There was some procedural tension between the chamber and the prosecutor and this tension itself was a cause for delay. Eventually, the judiciary successfully reined in the Prosecutor’s possible abuse of power. It’s the first case that the ICC has ever handled. We the judges and that particular chamber were determined to set the procedures straight and correct, once and for all, despite all the objections from the prosecutor and the defense.
One of the persistent objections that the ICC faces is that its work embodies a double-standard: tough scrutiny for weaker states, particularly in Africa, but a hands-off approach to conflicts involving big players. Song insisted that the court is simply following the world's worst crimes:
I don’t think the ICC has deliberately targeted weaker, poorer African countries. In my view, what is being targeted is not any country, what is being targeted is impunity, which is more rampant in that particular continent than any other part of the world.
There's been plenty of impunity in Syria, where the death toll is approaching 10,000, mostly civilians. For jurisdicitional reasons, the court has not opened an investigation of the conflict, and I asked Song whether the Security Council should now refer the matter to the court. Perhaps unsurprisingly, he chose not to comment on the Council's performance:
[T]o reach that decision the 15 countries on the Council will inevitably be engaged in all kinds of political debates. It’s their job. As the representative of a judicial institution, I’m not in a position of indicating anything one way or the other. It’s a political decision of the Security Council.
Song was somewhat less restrained, however, when it came to matters the Security Council has already referred to the court (Sudan and Libya). I asked him, in particular, about the Council's lack of action on visits to neighboring countries by Sudan's Omar al-Bashir, in defiance of an outstanding arrest warrant.
The ICC in the form of judicial findings sent a non-cooperation report to the Security Council for action. Every time non-cooperation has happened, we sent our report to the Council, and the Council has been sitting on them for quite some time. We hope that as a leading member of the Security Council the United States will play a more active role to get these things done.
That frustration aside, Song was almost joyful about the way in which the court's relationship with the United States has evolved in the past decade, including under the second Bush administration.
A group of us arrived at the court in March 2003....[and we] were not at all sure about whether this new baby would be able to survive all the hostility shown by the big powers....At that time the U.S. embassy in the Hague was under instructions not to even make contact with the ICC judges. We were never invited to the July 4th reception. As of three or four years ago, this attitude completely changed. The U.S. is now flexible, open, and cooperative with us. When I went to the State Department and met with Stephen Rapp, Harold Koh and Esther Brimmer, they all gave me one common catchphrase: positive engagement on the part of the Obama administration.
The South Korean jurist believes that, but for intervening events, the rapprochement between the court and the superpower might have gone even further:
[Bureaucratic obstacles] completely prevented the new administration from doing any overall review of their policy and then as the economic situation deteriorated, the ICC has to yield to other items in terms of priorities. The ICC became less of a priority than many other things.
David Bosco reports on the new world order for The Multilateralist.