The Comoros Referral to the ICC of the Israel Flotilla Raid: When a 'situation' is not really a 'situation'

As has been widely reported already, The ICC OTP announced today that it had received a referral from the Comoros "in relation to the event of May 2010 on the vessel Mavi Marmara". You will recall that this boat was part of the group of boats that tried to reach Gaza at the time and which were boarded by the Israeli army, resulting in a number of deaths and injuries.

The usual suspects of the blogosphere have already put up excellent posts on this development: Kevin Heller (here and here), Dapo Akande (here) and William Schabas (here). They already covered a number of more political issues which I won't delve into here, such the perception issues that would flow from the initiation or not of a formal investigation among African States and the international community, the alleged anti-palestinian bias of the ICC OTP or the apparently poor timing of the referral given that Israel and Turkey seem to be getting close to finishing their negotiations on the incident.

I also won't go discussions of certain legal questions that come up in relation to this referral. I would tend to agree with Kevin's evaluation that this would not meet the gravity threshold under Article 17, especially given the response given by the Prosecutor in the Iraq communications. However, I'm wondering if the Abu Garda case, which concerned a single attack on a peace keeping compound, and where it was considered that the gravity threshold was met, is not a indication to the contrary.

Also, I find the referral thoroughly sloppy on the legal characterization of the facts as war crimes and crimes against humanity. It unconvincingly tries to link the events to the Gaza situation (discussions on the Palestinian declaration to the ICC in 2009 are for me beside the point here) and there is a meager two paragraphs on crimes against humanity that would be laughable if not present in a formal State referral to the ICC.

Finally, as an aside, I think too much is being made of the link between the fact that Comoros is the State of registration of the Mavi Marmama and the fact that Comoros is doing the referral, as if the former implied the latter. However, legally, there is no need to make that link. What's important is that the alleged crimes were committed on the territory of a State Party, but after that, any State Party could have made the referral.

But the main point I want to focus on is whether this is really a referral of a "situation" as required by the ICC Statute. Both Dapo and Kevin make strong cases on the fact that this is indeed a "situation", because specific cases have not been referred (which would not be allowed) and because it is not an issue that potentially only one crime has been committed (I'm not entirely sure why both of them make this last point so vocally, as even the referral suggests, even unconvincingly a number of alleged crimes falling within the jurisdiction of the Court...). I'm still not convinced for the following reasons.

To start out, it is interesting to note that, reading the referral, the scope of the "situation" that is referred is subject to interpretation. The Mavi Marmara is mentioned a number of times in the document, but the actual referral seems to be broader and cover "IDF's attach on the humanitarian aid flotilla on the 31st of May 2010". This ambiguity is reflected in the OTP Press release with only mentions the Mavi Marmara in the title of the release, while using the broader scope in the text of the release.

I think both interpretations raise different questions that I'm struggling with.

If the situation referred is the attack on the Mavi Marmara, I can't shrug the feeling that this is stretching the notion of "situation" a little too far. Of course, a "situation" needn't be the whole territory of a State (as illustrated by the Uganda and Sudan referrals). However, I'm wondering if narrowing down a referral to a single event doesn't make a joke out of the whole idea of what a "situation" is (as well as of prosecutorial discretion in the selection of cases). Would we really call, for example, the "referral" of the destruction of the bridge of Mostar or the Sarajevo snipping, "situations"? Or to take an ICC example, what would we have said if only the attack on the AU peacekeepers, for which Abu Garda was charged, had been referred by the Security Council?

Moreover, the thin line between "situation" and "case" becomes a little blurred if this referral is accepted. Indeed, at the ICC, a case is when, within a situation, a specific individual becomes the focus of investigations for specific crimes.  For me, allowing only one incident to be referred under the label "situation", would be like saying in a national context that investigation into a murder is a "situation"... until a suspect is identified and it becomes a "case". This would be a ridiculous semantic distinction. In other words, I think that we are here very close to a "case" being referred to the ICC. This feeling is obviously strenghtened by the fact that the perpetrators are already know and pointed to in the referral, at least collectively, as the IDF.

Let me be clear, I'm not saying that this referral does not fit the ICC definition as it currently stands and as put forward by Dapo and Kevin (given that it is extremely vague both in the Statute and the case law...), but should this be considered as a "situation", thus allowing the ICC to take on specific incidents, rather than broader "situations" (for lack of a better word...),  I think this could change the logic of ICC intervention in ways that would not be necessarily welcome.

If, on the other hand, the "situation" is the attack on all the boats, notably the two other ships flying flags of State Parties (Greece and Cambodia), then a different question arises. The issue can become whether the referral is too broad rather than too narrow. Indeed, the referral covers crimes committed not on the territory of one State Party, but on the territory of several State Parties. Again, nothing in the Statute seems to prevent that, but I'm wondering if this is really what the drafters intended, because it could lead to the consequence of actually de-territorializing.

Indeed, what the Comoros are essentially saying, is that the key element is the attack and its perpretrators, irrespective of the territory it was committed on (aside from the jurisdictional requirements of course). This means that tomorrow, a State could refer the crimes committed by a global terrorist organization, anywhere on the territory of a State Party. Would that fit our instinctive notion of a "situation"? If it doesn't, we must be cautious at accepting a referral which does the same here: the attack of the IDF on the flotilla, irrespective of the territory it was committed on. I know it seems difficult to compare the two situations, because we are just talking about boats here, not entire countries, but legally, it's the same difference.

All in all, I think that the fact that this is a "situation" under the Rome Statute is not as clear-cut as we would like to think. And if it turns out to be, I think it sets a precedent that can have far-reaching consequences that we should be aware of and that might affect the way the ICC operates in ways that go further than the specific political context in which this referral comes.

Guest Post: What the ICTY appeal judgment in Perišić means for the SCSL Appeals Chamber in Taylor

By Manuel J. Ventura

Director, The Peace and Justice Initiative

I’d like to begin by thanking Dov for giving up the space on his blog to allow me to post the following thoughts on the Perišić appeal judgment as it relates to Charles Taylor’s pending appeal at the Special Court for Sierra Leone.

During the closing trial arguments in the Perišić case, the following memorable in-court exchange was recorded between Presiding Judge Moloto and Senior Trial Attorney (now Co-Investigating Judge at the ECCC) Harmon. It is quoted at length because it goes to the very heart of why the Appeals Chamber overturned the convictions of Perišić – the highest ranking Yugoslav military officer during the time of his indictment – for aiding and abetting crimes committed by the VRS (Bosnian Serb Army) through the provision of substantial military support and assistance:

Judge Moloto: [M]y question is what is the authority for the proposition that, if an army assists another army in war and crimes are committed of the nature that are charged in this indictment, that the assisting army or commander of the assisting army is guilty of aiding and abetting those crimes?
Mr. Harmon: Your Honour, General Perišić provided assistance knowing that that assistance was going to assist the VRS [Bosnian Serbs] and it was likely that that assistance would be used in the commission of crimes.
Judge Moloto: Okay. Let me paint you an analogous scenario and get your comment on it. A war began in Afghanistan in 2001 and it is generally known that there are allegations of crime having been committed at least since 2002 to date. Does that make the commanders of the various NATO armies that are jointly participating in that war guilty of the crimes that are alleged to have been committed, and are still being committed, like detentions in Guantanamo, in Bagram, in Kabul and all these places?
Mr. Harmon: Your Honour, you are asking me obviously, an explosive political question.
Judge Moloto: No, no. It’s a legal question.
Mr. Harmon: I would like to answer your question. The objectives, as I understand, of the NATO forces isn’t to ethnically cleanse parts of Afghanistan. It is to be engaged in a military campaign against the Taliban. It is --
Judge Moloto: Mr. Perišić is not charged with ethnic[] cleansing. He is charged with murders. That’s why I’m making the distinction between the actual crimes that are charged in the indictment. […]
[snip]
Judge Moloto: […] [M]y question still stands, […] – what is the authority for that proposition and I’m saying can you comment on the – on the analogy that I’ve drawn because all the other commanders of the NATO nations that are involved in Afghanistan are aware of the kind of crimes that have been committed there and are still continuing with that war. It’s not a political question, it’s an analogous situation to this one.

Guest Post: Springing the Trap: Prosecutorial Discretion Beyond Politics and Law

By Jens Iverson, Leiden University

I’d like to thank Dov Jacobs for allowing me to post on his excellent blog.

This essay is, at heart, a plea for a more open discussion of the tradeoffs inherent in pursuing international criminal justice, particularly with a limited budget.  Too much time is wasted in unsubstantiated allegations of politicization and unsatisfying invocations of simply following the evidence.  We are stuck in a rhetorical trap that ill-serves the goals of making and explaining our value choices and critiques.

I’ve noticed a pattern in responses from the Office of the Prosecutor (OTP) of the International Criminal Court.  For example, when the particular charges chosen by the OTP in the first trial are questioned, the OTP will emphasize that they follow the lead of the evidence.  When members of only one side of a conflict are charged, the OTP will argue that to charge leaders from both sides, when that is not where the evidence leads, would be a political choice – and they must avoid politicization.  When the question of whether there is a tension between prosecution and peace arises, OTP spokesmen will typically point to the UN Security Council’s power to pause investigation and prosecution, indicating that political choices should be made by the Security Council, not the OTP.  When it’s pointed out that every situation country is in Africa, the response is much the same as to the question about refusing to “balance” prosecutions on both sides of a conflict – the Prosecution will not “balance” their work by opening an investigation elsewhere if that is not where the evidence leads.  The OTP will not be politicized.  It will follow the law.

I am sympathetic with the OTP’s rhetorical approach on the issue of politicization.  This post will not follow the common “critical” approach in which, in the name of truth-telling, the hidden politics of a seemingly apolitical framework (such as the universality of human rights or the rule of law) are cleverly revealed.  While I hope the discourse regarding the choices of the OTP changes, if anything, this post is “anti-critical” – rather than seek to expand the realm of politics to cover the entire field, I suggest that it would be more helpful in the Pragmatic sense, more human, and perhaps more honest, to keep both politics and law in their respective corners when possible and instead admit other explanations and criteria for the OTP’s actions.  It may seem flippant to compare the weighty matters of international criminal prosecution to, for example, performance art, but I am not trying to be flip.  It may seem overly grand to compare the selection of criminal charges to the choices different cultures make over history, but again, I am trying to be helpful, not grandiose. 

What is needed, I suggest, is a conversation where those interested in the OTP’s decisions can discuss them without falling into an artificial dichotomy where everything is either political or legal, with no room for additional criteria to be considered or applied.

Breaking news: ICJ find that Senegal violated its obligation to investigate and prosecute Habré under the Torture Convention

[Note: this post is based on the oral reading of the Judgment, so might be incomplete in parts. The Judgment was just released and can be found here]

Today, the International Court of Justice issued its Judgment in the case opposing Belgium and Senegal on whether Senegal is violating its international law obligations by not prosecuting, or, alternatively, not extraditing to Belgium former Chad President Hissène Habré. As shown by the history of the proceedings, and as is often the case at the ICJ, this is the end result of quite a long process between the two countries, that started in 2005. In addition, the question has been going on for even longer, essentially since Habré found exile in Senegal after having been removed from power in 1990. It should be recalled that Senegal did try to initiate proceedings in the early 2000s, but all charges were dropped because he was being prosecuted for international crimes (crimes against humanity among others, but also torture) that did not exist in Senegalese criminal law at the time. Moreover, when the AU called upon Senegal to prosecute Habré anyway in 2006, the country tried to implement new laws. However, Habré obtained an ECOWAS judgment saying that this would be contrary to the principle of legality.

• Jurisdiction

Having first established jurisdiction based on the Torture Convention, the Court moved on to consider whether Belgium's contention that Senegal had violated its customary international law duty to prosecute crimes against humanity, war crimes and genocide gave the ICJ jurisdiction. The Court found that at the time of the dispute, this was not an issue, so the judges excluded jurisdiction on this ground, which means that they did not make any findings on whether a State is under an obligation to prosecute non-nationals for crimes committed abroad, only on the interpretation of the Torture Convention, more particularly 2 of its provisions:

Article 6(2): "Such State shall immediately make a preliminary inquiry into the facts".
Article 7(1): "The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution."

•  Admissibility

Senegal also challenged Belgium's standing to bring the case. The ICJ first discussed whether the simple fact of being a party to the Torture Convention gives standing. Having recalled the object and purpose of the Convention to end impunity for torture and all States have a common interest in fighting impunity. Obligations under the convention (notably under the above mentioned provision), apply irrespective of the nationality of the perpetrator or the victims, and all States have a legal interest in the respect of the obligations. It is therefore an obligation erga omnes partes, similar to the Genocide Convention. This common interest implies that every State can ask another State to put an end to violations of the Convention, so Belgium did have standing.

• Substantive violations of the Torture Convention

The ICJ then moved on to the substance of the claims of violations of the Torture Convention by Senegal. The Court recalls preliminarily the obligation to criminalize Torture in national law and establish universal jurisdiction, as a prerequisite to the satisfaction of any duty to prosecute. Senegal's adoption of such legislation in 2007 caused delay in the prosecution of Habré, and therefore affected its other obligations under the Convention.
As for the violation of Article 6(2), the preliminary investigation has for purpose to bring together elements on the alleged actions and conduct of the person. Senegal should have therefore requested more assistance from Chad and done more to investigate allegations against Habré. In light of the object and purpose of the convention, Sénégal should have established more systematically whether there were reasons to be believe that Habré had committed acts of Torture, and therefore violated its obligations under the convention to open a preliminary investigation under Article 6(2).
In relation to the violation of the duty to prosecute, the ICJ recalls that each State decides whether to proceed with a prosecution in conformity with its national laws, within the context of the obligations laid down before. The ICJ finds that Article 7(1) imposes a duty to initiate proceedings, irrespective of an extradition request from another State, as a consequence of the respect of Article 6(2). If there is an extradition request however, the duty to prosecute falls if the person is actually extradited. Extradition and Prosecution are not on the same level. Extradition is a mere option, whereas prosecution is an obligation. The prohibition against torture is a jus cogens norm, but duty to prosecute of the convention only applies to acts that intervened after the entry into force of the convention for a given signatory State. The ICJ therefore finds that the duty to prosecute only applies to Sénégal for acts before the 26 June 1987. After that date, however, the duty to prosecute applies.
The ICJ also summarily finds that the ECOWAS judgment is irrelevant for its evaluation.
Finally, Article 7(1) does not contain any timeframe, but the ICJ finds that proceedings must start within a reasonable time, especially in light of the object and purpose of the Convention to put an end to impunity for Torture. The Judgment therefore confirms the violation of Article 7(1).

As a remedy, this continued violation should be put to an end by the actual prosecution of Habré.

• Some first thoughts 

Based on what I've heard, I don't find the substance of the Judgment particularly surprising. It's quite obvious that Sénégal did not respect its obligation to investigate and prosecute the acts of torture allegedly committed by Habré. It is interesting how the Judgment does seem to distinguish prosecution (seen as an obligation) and extradition (seen as a option). There is therefore no actual "duty to extradite". Extradition is in effect a defense against any claim of a violation of the duty to prosecute. The other point is the question of the time frame (not) imposed by Article 7(1). I disagree with the reasoning of the judges, when they use the object and purpose of the convention to justify a "reasonable delay". the teleological interpretation is often referred to abusively in my opinion, and I would have preferred an evaluation based on actual actions and intent of the State to genuinely comply with its obligations, in which time is but one component.

One difficulty that does remain is how Senegal is to implement this judgment, in light of the ECOWAS judgment of a few years ago. I think that the ICJ should have dealt with the substance of the ECOWAS Court reasoning, but even if the ECOWAS judgment was wrong, it remains an international decision that Sénégal should comply with, in the same way that it should comply with the ICJ judgment. The ECOWAS does leave room for flexibility for Sénégal to implement an ad hoc criminal procedure which might be compatible with the ICJ Judgment, but such compatibility is at this point merely speculative, and Belgium's claim that the fact that Sénégal is now confronted with two conflicting international obligations is its own fault is beside the point. It might be true, but the fact remains that today, Sénégal still has to deal with the fact that implementing the ICJ judgment might violate the principle of legality recognized by another international court, and more importantly which is due to Habré (although I do think that the ECOWAS judgment made an incorrect reading of international law, even if I agree with them in theory). Some help from the ICJ on that point would have been welcome.

Where the Judgment might be a little more problematic is on its finding that any State party, irrespective of a particular interest in the case, can bring a claim before the ICJ based on the non-respect of the duty to prosecute torture. This finding is based on the alleged erga omnes partes nature of the obligation and the common interest of all parties to the convention that there should be no impunity for acts of torture. In effect, although the Judgment does not mention it, this reasoning seems to fall within the context of Article 48 of the ILC Articles on State Responsibility, which provides that:

1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole.

I tend to disagree with this reasoning, based on a moral rather than material imperative. Indeed, while the prevention of torture is certainly a legitimate common goal, the violation of the duty to prosecute, in my opinion, does not affect other State parties in the same way that, for example, the obligation not to pollute a river or the high seas might, justifying the erga omnes partes characterization. With the confusion between the material and moral dimension of an obligation, one can claim that all multilateral treaties, whether human rights treaties, or trade agreements, contain erga omnes obligations, because why would States collectively sign such a treaty without a shared collective interest that it should be respected by everyone, in the absence of a specific interest of any particular State? Moreover, not only is this reasoning too broad, in my opinion, from a legal point of view, it can have very practical consequences. Essentially, it means that the ICJ's docket in the next few years could be swamped with claims by any State Party to the CAT against any other State Party to the CAT. Arguably, this might of course increase compliance with the Convention, but it could also become a litigation nightmare that I'm not sure the drafters had in mind (but specialists of the CAT can correct me if I'm wrong on this).


Finally, while I understand the reasoning of the Court on the customary law duties to prosecute, it is a pity to we do not have the ICJ's substantial views on this. It might have brought some clarity to a contentious field, in the same way that the Germany v. Italy Judgment rightly put to rest this idea that alleged commission of international crimes removed head of State Immunity.

Random Comments on the Mali Self-Referral to the ICC

As anybody following ICC activity most likely knows, Mali has referred its own situation to the ICC, as indicated by the OTP in a press release. I was not planning to particularly comment on this event, but after reading the excellent analysis from fellow bloggers Kevin John Heller, Mark Kersten and William Schabas, which I share to a large extent, I had a few thoughts of my own, as a reaction.

• Another African Case

All three comment on the fact that this might not be a good idea to open yet another investigation in Africa, given the criticism that the Court has received in the past for this African trope. Certainly, there are countries in the world outside of the African continent which would have been deserving of an investigation. But generally, I still think, as I said two years ago (see here and here) that this criticism is widely exaggerated. 

First of all, it is difficult to "map" a coherent public opinion on this issue, whether from Africa or internationally. Some African leaders might make some noise occasionally, using the ICC as one among many tools to blame the West for everything that goes wrong in Africa, but then I hear victims' groups asking for MORE investigations in African countries. In addition, Mark is right to point out that the AU "opposition" to the ICC is not as wholesale as sometimes presented. What the AU often criticises (and rightly so in my opinion), is the clear disregard for basic principles of international law, such as head of State immunity, that flows from UNSC referrals, not necessarily ICC activity in general. 

Second of all, overall, the fact remains there are not that many situations around the globe where the systematicity and gravity of the violence reaches the levels that takes place in the DRC, Uganda or CAR. Sri Lanka springs to mind spontaneously, probably Colombia might deserve less complacency, and Syria has obviously reached the level where if Libya deserves a UNSC Referral, it certainly does to. But generally, if you had to rank the worst crimes being committed around the world, it would be disingenuine not to recognize that African situations have ranked quite high up. 

Finally, there might be two Security Council referrals in Africa, but as recalled by William Schabas, there were three self-referrals (DRC, Uganda and CAR). In addition, if the Ivory Coast situation is technically a proprio motu investigation, the 12(3) declaration by the State (which is not a party to the Statute), resembles a self-referral in everything but name. Of course, one can raise questions on the actual decisions of the OTP to follow through on these referrals, as the others do, but on the point being considered here, it is difficult to say that the ICC is biased against Africa, when African countries are referring themselves to the Court!

• The Problem with Self-Referrals

Which doesn't mean that the self-referral practice does not raise difficulties of its own. As pointed out by the other bloggers, there are essentially two issues with this, both linked to the possible political manipulation of the Court by the States.

The first one is the limitation of the referral to the activity of the rebels. This kind of limitation can be damaging to the perception of impartiality of the Court. In this sense, I feel a similar unease at Fatou Bensouda shaking hands with the government representatives, even if it was more low key, than I did some years back when Ocampo was shaking hands with Museveni for the Uganda referral. That being said, it should be recalled that technically speaking, this limitation has no legal value. Indeed, a State refers a situation to the Court and it is then up to the Prosecutor to decide what crimes (including those committed by the government) to prosecute. In this sense, one can say that if there is an intent to manipulate the Court, it is the actual choices of the OTP that will show whether there is consent to be manipulated. Uganda and Ivory Coast are examples where it didn't particularly bother the former Prosecutor to play along. Let's see if the new Prosecutor has more reservations about this.

The second aspect is the idea that States get rid of the cases they do not want, even if they would be able to prosecute the perpetrators themselves. On this point I tend to agree with my fellow bloggers. It is not really in the spirit of complementarity for States to so easily delegate prosecutions to the ICC, when the end goal of the system, as least in the rhetoric, is that States be the first in line in the fight against impunity, with the ICC coming in when the system does not work, or is used to shield the perpetrators from actual justice. Such outsourcing is apparent in a number of situations. As Kevin has pointed out, Uganda clearly has the capacity to prosecute the LRA leaders, if only it could catch them (before they are all killed by infighting...). Also, one should remember that Lubanga was being held in custody for international crimes before being transferred to the ICC. Similarly, Ivory Coast explicitly announced throughout 2011 that they were not prosecuting international crimes against former president Gbagbo, to allow the ICC to do so and avoid admissibility problems, with the OTP kindly complying, whereas everybody else belonging to the pro-Gbagbo camp has since been indicted locally with war crimes, crimes against humanity and even genocide since. If that is not a case of manipulation, I don't know what is.

But the fact remains that this is what the legal framework says. Complementarity in practice resembles nothing like the nice philosophy that is sold to us. It is a mere, non compulsory, procedural hurdle and actually more often than not resembles primacy. Moreover, the test is extremely narrow, contrary to what many people think. Kevin is right to remind us that inactivity, whatever the reason, defeats any admissibility challenge. In relation to that, I recall that one defendant (I think it was Lubanga) argued that allowing such inactivity to trump complementarity is de facto allowing States to violate their international law obligations to prosecute certain crimes. I found the challenge quite smart, but of course, the Judges decided otherwise, and found that the referral to the ICC was one way to satisfy this obligation. And even if there is activity, the very narrow "same person, same conduct" test, allows the ICC to intervene even when national prosecutions are ongoing, as the Lubanga case once again shows.While I have my reservations on the policy consequences of this framework, from a purely legal point of view, that is in my opinion the exact way to interpret the Statute. "Positive Complementarity" might be a nice PR catch phrase, but that is not how complementarity was drafted in the Statute (which is why I think that the OTP's approach to Colombia is legally dubious, but that is a different issue).

• Miscellaneous thoughts on "politics", "legitimacy", "perceptions" and other empty words

My fellow bloggers have pointed out the various issues that make them more or less cautious in relation to the referral, in terms of "political" credit or manipulation, "legitimacy", or "perceptions". While I enjoy having these discussions, I have to admit some caution of my own in using these terms, because I often do not know  how to use them. 

For example, the question of "politicization" puzzles me as an argument whichever way I look at it. Indeed, people claim all types of policy goals for international justice, beyond the core function of a criminal court which is to prosecute people, such as peace or reconciliation, which are broadly political goals. By doing so, they are themselves politicizing the Court in my opinion, so cannot really complain when it is politicized in a direction they do not like. From another perspective, I've never been convinced by the manichean dichotomy of law (=good) and politics (=bad), which is often at the heart of the argumentation of many activists, notably from the human rights fields, for example when they criticize the role of the Security Council in the ICC Framework. Law is the result of political choices, neither of them being intrinsically good or bad, and human rights are no less "political", just because they have a diploma of universal morality. At the end of the day, who cares if States use the Court for political reasons? The ICC was set up to prosecute people, and that is exactly what it is doing (albeit not perfectly...). The ICC will never be able to prevent the political use of its work, whatever it does, in the same way that people use court rulings against other people in any national environment, even when the Court ruling is not initially meant to be used in that way.

Which brings me to my last point, on "legitimacy" and "perceptions". For one, "legitimacy" is often unhelpful, because it is used as a static quality that an entity has or has not. But "legitimacy" is a relationship between the entity and a specific observer. It can be legitimate to some and illegitimate to others. The key being to identify the target constituency. But even when you do that, "legitimacy" is still hard to define because it is a function of expectations which are artificially created. For example, international justice is often blamed for not achieving certain goals (peace, reconciliation, reparation for victims), when this expectation should never have been created in the first place! And the worst part is that those to blame for this are the proponents of international justice themselves, who often oversell their humble family car as a formula one race car. Linked to this, there is often this illusion that legitimacy is a result of a rational equation between different objective factors, such as, for some, respecting the rights of the defense, or for others, prosecuting both sides of a conflict, or having judges from certain countries sit (or not sit) on the bench. But often, people will come to the issue with a preconceived idea of what they want, and, more importantly, what is good for them, and judge an institution by that standard, whatever it does. The ICTY was legitimate for croats when it prosecuted Serbs, but not when it prosecuted Gotovina. I might think that the ICC is illegitimate for convicting Lubanga despite the gross violations of the rights of the defense throughout the process, and his victims might think the ICC illegitimate because he was not sentenced to enough prison. At the end of the day, legitimacy is a totally unworkable concept from a methodological point of view. 

• Bottom line

But I'm straying away from the topic. Bottom line, the self-referral is legal and it's not the Prosecutor's job to evaluate whether she is being manipulated politically, or whether she is perceived as legitimate by such and such constituency. She should do her job of prosecuting people correctly, because that is what she is paid for. If (and it's a big "if", given past performance of the OTP...) the work is done competently, then it is not her problem what the possible consequences might be. Let States take their responsibilities and put their money where their mouth is. If the Security Council wants the ICC to investigate Syria, it should help pay for it, and State parties should increase the budget of the Court (once it is established that the money is well spent). States created a Court to prosecute crimes, irrespective of political considerations, and if they are unhappy when it actually happens, they should have thought of it sooner (or even get rid of the Court). But it is not the Prosecutor's job to do this balancing act between politics, diplomacy and accounting.

As I wrote this last paragraph, I realized that this is something Ocampo might have said (possibly in shorter sentences) and this means that this is two posts in a row where I feel sympathy for him. I fear I might be coming down with a break up syndrome, whereby, when a bad relationship ends, you suddenly remember only the good memories (also known as the graduation goggles). This is unlike me, and I hope I get over it soon...