The session on Making Prevention Feasible and the discussion with Luis Moreno Ocampo revealed two different conceptions of the role of International Criminal Court (ICC) prosecution.

Prevention and the Role of Prosecutor

Justice Richard Goldstone described the role of Prosecutor as constrained by the specific limits authorized by the Rome Statute. Goldstone emphasized the Prosecutor’s duties as external to the political process of negotiations to end armed conflict, which are often concurrent to investigation and indictment.

During the discussion between Professor Akhavan of the McGill Centre for Human Rights and Legal Pluralism and ICC Prosecutor Moreno Ocampo, there was a clear shift in imagining the prosecution’s role in current conflicts, such as Darfur. Ocampo described a two-fold function of the Prosecutor’s office:

• The duty to investigate past and present crimes
• To contribute to the prevention of crimes

Moreno Ocampo sees prevention and deterrence at the heart of the Rome Statute, which authorized the ICC (see Preamble). He views the Darfur conflict as a testing model to see how law can be used to prevent atrocities. Enforcing the ICC’s arrest warrant for Ahmad Haroun will prevent future crimes in Darfur, according to Moreno Ocampo.

Constraints to Prosecutor’s office

Like Goldstone, Moreno Ocampo recognizes the constraints of the ICC, a judiciary without an analogous institution to domestic police to enforce its warrants. Ocampo has a holistic view which involves pressure from civil society to influence political will of national governments. The legitimacy and accountability of the ICC can be imagined as developing within this framework of practice, not from statutory law.

Another problem Ocampo notes is that “there will never be enough justice.” The ICC’s work should be seen as one part of a whole, a complement to other forms of justice, such as Truth & Reconciliation Commissions, and humanitarian work. He mentioned the lack of legal criteria on determining who to bring to trial. In the case of Nuremberg, he recounted that the number of people tried at each case, twenty-two, was determined by the number of chairs available in the courtroom.

Deterrence

In contrast to the previous panel, Ocampo sees the ICC as being an effective deterrent, especially in the case of military action. The ICC’s impact on reviewing the rules of engagement in Afghanistan and general military policies to avoid prosecution in the Hague has been significant.

Complementarity

Sudanese human rights lawyer Salih Mahmoud Osman questioned the concept of ICC’s complementary jurisdiction, as stated in the Preamble of the Rome Statute. Professor Akhavan described the relation as follows: If domestic courts are willing and able to prosecute, the ICC has agreed to not exercise its jurisdiction. Osman emphasized the importance of privileging ICC’s jurisdiction. In the case of Sudan, there are no crimes against humanity enumerated in the penal code.

Osman reiterated the necessity to support the ICC and to generate political will for its effective functioning through pressure on national governments. Adding to this equation, Moreno Ocampo further emphasized the need for effective lobbying on the international level.

All proceedings from the Global Conference on the Prevention of Genocide are now online.