Navigating Law and Politics: The Prosecutor of the International Criminal Court and the U.S. Independent Counsel
Posted: 14 Apr 2003
U.S. officials who explain the current administration's distrust of the International Criminal Court (ICC) routinely describe the Court's "unaccountable" prosecutor as one of the Court's principal defects. They frequently assert that the ICC prosecutor bears more than a passing resemblance to a largely discredited institution from recent U.S. political history: the independent counsel. This Article probes the validity of the assumption that the ICC reproduces the weakness of the independent counsel regime on a global scale.
I argue that the comparison between these two institutions is overstated and the fears unwarranted. The treaty creating the ICC places far more checks and restraints on its prosecutor than the Ethics in Government Act imposed on the independent counsel. In addition, unlike the ad hoc nature of the independent counsel, the permanence of the ICC promises the development of an institutional culture. This wide-angle lens stands in stark contrast to the relentlessly myopic focus that characterized the U.S. model. Furthermore, the broad scope of the ICC's jurisdiction and the concomitant restraint imposed by limited financial and other prosecutorial resources will provide a potent brake on an overzealous prosecutor.
Nevertheless, the U.S. experience with the independent counsel scheme provides a useful cautionary tale for the ICC. It reveals the difficulty of investigating criminal allegations against powerful political leaders. It also illustrates the importance of prosecutorial independence, as well as the fragility of prosecutorial legitimacy. The appropriate lesson to be drawn from the demise of the independent counsel regime is not to abandon all hope of independent mechanisms for the enforcement of international criminal law. Rather, that experience underscores the need for adequate enforcement of laws against the politically powerful, with sufficient limits on the prosecutor's power to prevent these prosecutions from running amok.
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