Considering the Regional Distribution of ICC Prosecutions

On Monday, May 6, 2019, in the Ogilvie Grand Salon of the Combes Student Life Center, Assistant Professor Sharon Weill of AUP’s Department of International and Comparative Politics was joined by Jiewuh Song, Associate Professor in Political Science and International Relations at Seoul National University, for an event entitled “Regional Distribution as a Distinct Criterion in International Criminal Court Prosecution.” It was organized and moderated by Assistant Professor Julian Culp of AUP’s Department of History on behalf of the George and Irina Schaeffer Center for the Study of Genocide, Human Rights and Conflict Prevention.

The mission of the International Criminal Court (ICC) is to prosecute perpetrators of genocide, war crimes, crimes of aggression and crimes against humanity. The ICC is based in The Hague, the Netherlands, and officially started its work in 2002, when the so-called Rome Statute entered into force. Its mission, however, is much older, going back to the Nuremberg trials in which some of the individuals responsible for the atrocities committed by Nazi Germany during the Second World War were prosecuted. In these trials the international community recognized for the first time the need to internationally prosecute those responsible for crimes that are so serious that they count as crimes against humanity.

The ICC is currently suffering from a legitimation crisis; many observers criticize the fact that the individuals it prosecutes stem predominantly from African states. Thus far ICC officials have responded that geography and region do not and will not enter into its prosecutorial deliberations – a response widely perceived as unsatisfactory. Against this backdrop, Song proposed that the ICC could and should consider a regional distribution criterion in its prosecutorial decision-making. She maintained that this would not be an ad hoc – potentially arbitrary – reaction to the ICC’s legitimation crisis, but would instead result from recognizing that international law requires fair and comprehensive enforcement.

In the ensuing discussion, Weill questioned whether Song’s analysis was too positivist and recommended adding a critical examination of the underlying power relations in the ICC’s prosecutorial practice. These comments gave rise to an engaged debate, in which students considered how Song’s proposal to include a regional distribution criterion could eventually find its way into international law. This, in turn, gave rise to a far-reaching and challenging reflection on the relation between legal theory and practice.