Fighting Impunity at the ICC

By Andrew Max, 2L, International Criminal Court (The Hague)

The timing of my internship at the International Criminal Court this summer could not have been better. I was able to work on important stages of two different cases while exciting things were happening at the court, including the issuance of arrest warrants for crimes committed in Libya and the false rumours of Saif Gadaffi‘s arrest.

The ICC is a permanent court that has jurisdiction over the most serious crimes against humanity and war crimes – including, among many others, the use of child soldiers, rape, murder, genocide, and persecution. Crimes may fall under the jurisdiction of the court when they occur in a country that has ratified the Rome Statute or because of a UN Security Council referral. The Office of the Prosecution ("OTP") is the part of the court that investigates crimes and prosecutes individuals. I interned for the Prosecution Division, which is the section of the OTP that actually litigates the cases.

Initially, I worked on the ICC‘s first case, The Prosecutor vs. Thomas Lubanga. The accused is charged with conscripting, enlisting and using child soldiers in the Democratic Republic of the Congo (DRC). The trial-phase was wrapping up as I arrived and our team was preparing the 250-page closing brief (1500 footnotes!), summing up a trial that lasted nearly two years.

The team was small and we worked together closely, at times crowded around desks into the early hours of the morning. The period immediately before the filing deadline was busy. This was the first case before the court and our submission had to be perfect. On the eve of the deadline, the whole team ate dinner together and then went back upstairs to hunt for errors until the early morning. After a few hours of sleep, we returned to work. About one hour before the deadline, the fire alarm went off in our building. Hoping it was an ill-timed drill, our team barricaded itself in an office and kept working until we were forced out at the last minute. We filed the brief on time and celebrated with senior members of the OTP, including the Prosecutor, Louis Moreno-Ocampo.

Closing arguments in the Lubanga case took place while I was still at the court. One of the Prosecution‘s speakers was 92-year-old Benjamin Ferencz, previously a prosecutor at Nuremberg. Angelina Jolie was also in attendance. It was thrilling to watch the ICC‘s first case, which I had the privilege of working on, come to an end.

For the rest of the summer, I worked on a new case before the Court. Some of the most exciting assignments were urgent responses to defence filings. Within a few hours I was required to read the defence filing, strategize with the team on how best to respond, conduct research, and then draft a Prosecution filing. I assisted with drafting more substantial submissions, including the Document Containing the Charges, analysed victim applications for participation in the proceedings, and worked closely with the Investigative Division. As our time in court drew near, I also had the opportunity to analyse defence evidence.

The highlight of my summer was attending the court appearance we had spent so much time preparing for. I was able to watch as the Prosecution set out the case-in-chief, using text I helped draft. In court, I took notes and provided information to Prosecution lawyers for use during oral arguments. From the Prosecution‘s table, I watched many heated exchanges between Prosecution and Defence lawyers and exciting cross-examinations. That evening, the Prosecutor, Louis Moreno-Ocampo, stopped by our office to discuss the case.

Lawyers, academics and journalists often criticize the decisions of the OTP and its personnel. My time at the ICC allowed me to observe first-hand the unrelenting pressure on the people actually making these decisions. The domestic and international political considerations that lie behind many litigation decisions are extraordinarily complicated. As well, substantial (and often unavailable) resources are required to gather evidence, protect witnesses, and comply with the ever-increasing duties imposed on the Prosecution by the ICC judges. For instance, in one case I worked on, the Prosecution was obliged to create and disclose a 20,000 page chart analyzing the evidence it intended to use.

My colleagues this summer included lawyers, professors, and law students from all over the world. It was exiting to meet and work with such a diverse group of people. During my two weeks of holiday, I travelled to Paris, Normandy, and Barcelona. My roommate (also a U of T Law student) and I drove to a music festival in Germany one weekend. W e also attended the Queen‘s Day and the Pride festivals in Amsterdam.

I would like to thank the IHRP for such an incredible experience!