The grave realities of mass atrocity can render life increasingly nasty, evermore brutish and exceedingly short for humanity’s most vulnerable members. Cultures of impunity arise and flourish where state leaders are unable, or unwilling, to prevent or curtail this violence. Such cultures stimulate intense levels of fear within entire populations, provoking large-scale internal displacement and refugee flows across state borders. Sometimes mass atrocity itself spills over these borders, turning localised violence into wider, more complex regional armed conflagrations, as occurred recently in Sub-Saharan Africa.1 In these circumstances, state capabilities to enforce the rule of law can be seriously eroded. Yet mass atrocities all-too-frequently involve the state, even though offering protection to its citizenry is often cited as the state’s primary function.2 State leaders have conducted mass atrocities not only against their own citizens, but also against the citizens of other states. Framed as an international security problem, these atrocities are in many ways worse than armed conflict and deserve to be treated with urgency and determined resolve by the international community , especially at the United Nations (UN) and within its Security Council.3
Notwithstanding these important politico-strategic considerations, mass atrocity is best characterised as a politico-social problem in the sense that groups struggle against one another in order to establish or maintain a collective sense of self.4 That social relations are torn asunder is almost always an objective informing the commission of mass atrocity, especially where social groups antagonise others by deliberately casting intended victims in the reductive, narrow terms of their national, racial, ethnical, class, religious or tribal affiliations. As Gerry Simpson points out, “[t]he subject is not ‘man’s inhumanity to man’ but the inhumanity to specific categories of men.”5 Describing mass atrocities as affecting “ humanity as a whole” and suggesting “that humanity is a victim” is, therefore, a step too far, as these violent episodes are a means by which particular social groups are augmented while others are seriously harmed or destroyed.6 Understanding mass atrocity as a politico-social problem challenges the conventional view of politics as something done by states and state leaders, as these social groups can coexist within a state and across its borders, and can assume control of the state and its machinery of government; such a perspective opens up the empirical field of inquiry beyond the fiction of states as the primary entity conducting world affairs. It also reveals that the ways in which atrocities are described can serve certain political interests, especially in terms of imposing a powerful distinction between the so-called civilised and the barbarian .7 Such descriptions have prompted, shaped and justified a plethora of responses from the international community , including the use of international criminal law (ICL) to prosecute those who commit mass atrocity.
This book is about those prosecutions. In particular, it offers a sustained and in-depth examination of various roles international prosecutors play in this collective endeavour. During the pre-trial phase of their work, these prosecutors prepare indictments, warrants of arrest or summonses to appear. They choose sets of particular details concerning alleged crimes committed by certain individuals at specific times and places. The content of these indictments, warrants or summonses is usually based upon extensive investigations, various analyses of information and close examination of available evidence. These legal documents hold the essence of the prosecution’s case, serve as the primary means of transforming a suspect into an accused and then a defendant, and tend to commence formal proceedings leading to trial. At trial, prosecutors build on the content of those indictments when making opening statements outlining their cases against defendants. Providing international prosecutors with an opportunity to showcase the legal character of their role, these statements can be the apex of prosecutorial performance, deploying forceful rhetoric on the courtroom’s stage to deliver a theatre-like experience for an appreciative, though not altogether disinterested, audience-at-large. As part of trial proceedings, prosecutors also select evidence to present in support of their cases, as well as rebut defence counsels’ arguments, cross-examine witnesses and make closing statements. For some perpetrators of mass atrocity, international prosecutors represent an appreciable risk to be avoided; for many victims of these crimes they symbolise hope that justice might be done.8 Their performance at trial has a direct bearing on both the enforcement of ICL within particular institutions and, by contributing to case law, the ongoing development of this evolving set of rules prohibiting the commission of the most serious international crimes.
In addition to performing these and other trial-related functions, international prosecutors manage relatively large, dynamic organisations, the associated administrative duties of which can occupy a considerable amount of their time and energy.9 As strategists, these prosecutors can shape parts of their respective ICL institutions, thereby informing the justice delivered through their prosecutorial effort. These prosecutors can also produce, or contribute to, formal accountability documents, such as the annual reports of the tribunal or court to which they belong.10 They can also release press statements and make public remarks with a view to providing some degree of accountability for their own decisions and actions in their quest for international criminal justice.11
International prosecutors are often “the public face of international criminal justice,”12 generating appreciable impacts in locales beyond the courtroom. The naming of a particular individual as a suspect can, for example, curtail that individual’s ability to engage in local, domestic or international politics; this is even more acute when the list of those indicted includes state leaders. Prosecutors foster outreach relationships with government officials and officials of intergovernmental organisations, though this is not necessarily open diplomacy as prosecutors may, in fact, choose to deal with diplomats behind closed doors.13 As the personification of international criminal justice within the wider international community , international prosecutors are living objects around which others can coalesce and, at times, mobilise into action. This occurs even though some policymakers, diplomats, journalists and academics are intimidated by international prosecutors when they make “self-assured comments about the imperatives of customary international law, often couched in confident resort to mysterious Latin maxims.”14
The pool of these prosecutors continues to grow as successive generations of lawyers cut their professional teeth at various ICL institutions. The specialised skillsets belonging to this “energetic, transnational and networked epistemic community” are highly marketable beyond academia.15 Forming part of “an industry of international criminal law practice populated by judges, lawyers and administrators who move from tribunal to tribunal,”16 some prosecutors emerge from, or go on to obtain, employment in the senior ranks of the public service or international organisations. After moving among the courtrooms of various institutions, others contribute to the production of scholarly knowledge through research and university teaching, “generating ever more students of mass atrocity jurisprudence for a legal market incapable of absorbing them.”17 Most of these prosecutors share a deep repugnance for the internat...
