The International Criminal Court: Possibilities for Prosecutorial Abuse

So many problems are present in setting up an international criminal court consistent with the current international legal, moral, and political orders, that one must at least admire the intensity and dedication of those involved in the effort. It is tempting to conclude that the current international orders are simply not consistent with the pattern of a world government that is implied in the notion of a transnational criminal court administering “universal law” applicable to “universal crimes.” But the attempts to build a superstructure of legal governance on the existing system, using the tools of positive international law, have achieved a remarkable degree of superficial success. Thus, it seems appropriate to pause and reconsider the situation. On the face of it, the questions themselves are daunting. Who should determine the content of any international criminal law? How should that determination be made? When and to whom should it be applied, and what institutional structure should govern? It is far beyond the power of a single writer to address all these issues in a short compass. A very large group of statesmen and scholars has attempted to grapple with these issues. The result is the Rome Statute for an International Criminal Court. To analyze that attempt definitively at this time is difficult, however, because the statute itself is being expanded and supplemented in ways that substantially revise it. Nonetheless, some issues which seem to be ignored or underrated by those involved in framing the Statute and its implementing regulations seem obvious to those who have had to work with attempts in the past to systematize an hypothesized international criminal law.