Speak Softly and Carry a Sealed Warrant: Building the International Criminal Court's Legitimacy in the Wake of Sudan

AuthorKai Sheffield
PositionCompleted his J.D. at the University of Toronto Faculty of Law in the spring of 2012 and is currently an associate at Sullivan & Cromwell LLP in New York City
Kai Sheeld*
CITED: (2013) 18 Appeal 163-175
e Rome Statute, the constitutive treaty of the International Criminal Court (ICC),
sets out the goals by which t he Court’s legitimacy can be measured: punishment of
perpetrators, deterrence of f uture crimes, and positive eects on the peac e, security, and
well-being of the world.1 Upholding and enhancing the legitimacy of the ICC is the
duty of the Prosecutor of the International Cr iminal Court,2 and Lu is Moreno Ocampo,
Prosecutor until June 2012, made it his project to make the ICC a “reality” which
political actors “cannot ignore.”3 During his time in oce, Moreno Ocampo handed
over a steady stream of accu sed war criminals and genocidaires from states par ty to the
Rome Statute (State Parties) to the judges in e Hague.4 However, he was much less
successfu l in bringing defendants from non-State Parties before t he Court.
Under the Rome Statute, the ICC possesses a limited power of universal juris diction,
whereby it may prosecute individuals from non-State Parties through referrals from
the United Nations Security Council (UNSC).5 is power, however, is not well-
* Kai Sheeld complete d his J.D. at the University of Toronto Faculty of Law in the spr ing of 2012
and is currently an associate at Sulli van & Cromwell LLP in New York City. He completed his
undergraduate degree in I nternational Relations at the Universit y of British Columbia. Kai wrote
a shorter version of this p aper as a third-yearlaw student for Profe ssor Michael Ignatie’s Human
Rights and International Poli tics class and is very grateful to Profes sor Ignatie for his guidance
and encouragement.
1 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90 (entered into force 1
July 2002) [Rome Statute].
2 The International Criminal Court, in its 20 06 Strategic Plan, set out three overarchin g strategic
goals. The second is the b uilding of legitimacy, or in the ICC’s words, strivin g towards “a well-
recognized and adequate ly supported institution,” re cognizing the fact that “the Cour t must
obtain cooperation and su pport if it is to carry out it s functions.” International Crimina l Court
Assembly of States Parti es, Strategic Plan of the International Criminal Court, 5th Sess, ICC-ASP/5/6
(2006) at 5-6.
3 Allison M. Danner, “Enhancing the Legitimacy an d Accountability of Prosecutorial Dis cretion
at the International Criminal Cour t” (2003) 97 AJIL 510 at 511; Luis Moreno Ocamp o, “The
International Criminal Cour t Today” (Lecture delivered at the Faculty of L aw, University of
Toronto, 14 November 2011), [unpublished].
4 Jacqueline Geis & Alex Mundt, “When to In dict? The Impact of Timing of Inter national Criminal
Indictments on Peace Proces ses and Humanitarian Action” (2009) (Pap er delivered at the World
Humanitarian Studies Conference, Groningen, February 2009) [unpublished].
5 Cedric Ryngaert, “The Inter national Criminal Court and Univers al Jurisdiction: A Fraught
Relationship?” (2009) 12 New Criminal Law Review 498 at 50 0.

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