Comment on the Politics Lecture Question: “To what extent should the ICC Office of the Prosecutor consider or engage in politics to advance international justice?”
Professor Steinberg states that one of the objections against his assertion that the ICC should engage in politics is "legitimacy", and he counsels that the court needs to preserve its legitimacy by dabbling in politics in a restrained (almost clandestine) manner. But legitimacy for an untried international institution isn't like a cloak which can be donned as needed. As soon as it is seen taking actions motivated by politics rather than law, it will be thought of as a political institution. The quasi political/judicial institution is a political institution, not a legal one.
Beyond public perception, there's an internal problem. Once the ICC starts to see itself as politically driven, politics will be like a cancer running through the organization. The overlay of politics will taint every decision, each of which will require consideration of potentially adverse political consequences. Professor Steinberg even suggests building up capability (37:00) within the Office of the Prosecutor to analyze the political consequences. Is the idea that the Prosecutor will decide whether to investigate or indict only after consultation with the political experts within her office?
Once the court becomes a lever to be manipulated by political considerations, it will be seen as a tool by the existing power structure and by those it seeks to influence. Does the ICC really want to become the weapon used by political organizations to make policy changes? In practice, this is likely to mean that the threat to indict and prosecute the worst of the worst will be bargained away in exchange for concessions on the ground. Do we go from fighting impunity to using justice as a bargaining chip?
If there are adverse political consequences to an action of the ICC, then the ICC can be told to back off through a formal action of the United Nations or, as Professor Steinberg suggests, through an action of the Assembly of States Parties. Let the international political organizations engage in politics and leave the ICC as a purely judicial actor.
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